CHAPTER 8 JUDICIAL PRONOUNCEMENT - Shodhgangashodhganga.inflibnet.ac.in/bitstream/10603/76479/14/14...

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CHAPTER 8

JUDICIAL PRONOUNCEMENT

8.1 Introduction

The restriction on use of probation based on age, sex and previous

conviction as laid down in Section 360 of the Code of Criminal

Procedure, 1973 does not exist in the Probation of Offenders Act, 1958

and it is applicable to all alike without such discrimination.

The Courts are empowered to place any offender on probation who

is guilty of committing any offence not being an offence punishable with

death or imprisonment for life.

The Act envisages a regular machinery for equity into the

personality, character, antecedents and home surroundings of the

offender in order to help the Court in dealing with the offender suitably

under the Act.

It makes probation inquiries mandatory in case of offenders below

the age of 21 years where provisions of the Act are applicable.

Probation implies suspension of sentence so that in case of failure

the term of sentence would automatically revive without the need for a

fresh trial.

Release on probation envisages various typs of conditions

including residential requirements, abstention from intoxicants and

payment of compensation by the probationer etc.

The Probation Officer's Pre-sentence Report is to be treated as

confidential as provided in Section 7 of the Act.

An appeal against the order refusing to release the offender on

probation may be taken up by the appellant Court suo motu.

Release on probation casts no stigma on the probationer and

attaches no disqualification whatsoever.

Besides the Probation of Offenders Act, 1958, provisions relating to

release on probation are also contained in the Code of Criminal

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Procedure, 1973 (Section 360); The Juvenile Justice (Care and Protection

of Children) Act, 2000 [Section 15(e) and (f) and The Reformatory Schools

Act, 1897 (Section 31), NDPS Act, 1985 (Section 33) etc.].

8.2 Various Dimensions

Condition of probation order - The Court may attach such terms and

conditions to probation orders as it may deem fit under the

circumstances of a particular case. The Court should be allowed a wide

but not unlimited discretion in imposing conditions. As regards the

conditions of probation order the following passage from the book called

The Magistrate by Sir Alison Russell will pay perusal:

The conditions imposed on a probationer are usually some of the

following:

1. That he be of good behaviour and appear before the Court for

(conviction and) sentence when called on at any time during the

period of ........... now next ensuring;

2. That he does not associate with ..............;

3. That he does not frequent ..............;

4. That he does lead an honest and industrious life;

5. That he does abstain from intoxicating liquor;

6. That he does reside at ..............;

7. That during the said period he be under the provision of ..............

(hereinafter called the Probation Officer), and

(a) For the purpose of securing such supervision, that the

probationer receive at his own home visits from the

Probation Officer weekly, or at such other intervals as the

Probation Officer may think fit; and, if so required by the

Probation Officer, attend at the probationer's home for the

purpose of such visits at times fixed by the Probation Officer;

(290)

and answer truly all questions put to him by the Probation

Officer with regard to his conduct, employment or residence;

(b) And that the probationer report forthwith to the Probation

Officer any charge of his residence or place of employment;

8. (Any special condition);

9. (As to damage or costs);

Special conditions

Apart from general conditions as to future conduct and the

requirements as to visits and reports to the Probation Officer, other

conditions should be simple and directed to the special circumstances of

the case; the inquiries made by the Probation Officer will enable him to

assist the Magistrate with advice as to the need of any special conditions

relating to the association or habits of the offender.

Duration of probation –

Probation orders are generally made for a period of not less than one year

and not more than three years.

8.3 Current Decided case Law

There are some decided case where M.P. High Court interpretate some

provisions of Probation of offenders Act, 1958 Details are under the

following :-

Rajkumar Pandey Vs. State of Madhya Pradesh, 2012(II) MPWN 212 :

2012(3) M.P.H.T. 337

[Ref.] Sec. 360 [under Essential Commodities Act, 1955- Sec. 3, 7(1)

(A)(2)] - Sacchidanand Vs. State of Madhya Pradesh thro' Food Inspector,

Ratlam, 2012 Cr. L.R. (M.P.) 618.

[Ref.] Sec. 360 - Probation of Offenders Act, 1958 - Sec. 6/4 - Penal

Code, 1860 - Secs. 294 and 324 - Offence under - Sentence -

Accused applicant is 18 years of age at the time of incident - No

(291)

material available about previous conviction of appellant in any

other case - He has not prosecuted after this case in any other case

and he is living peaceful life and maintaining his family - Now, he is

a married man - Held, It would be just and proper to release

applicant on probation. - Mahendra S/o Chunnilal Vs. State of Madhya

Pradesh thro' P.S. Banganga, 2006 Cr. L.R. (M.P.) 660.

[Ref.] Sec. 360, 361 [under Penal Code, 1860-Sec. 325]-Kalu Mandod

Vs. State of Madhya Pradesh, Jhabua, 2011 Cr. L.R. (M.P.) 689.

[Ref.] Sec. 360, 361 [under Penal Code, 1860-Secs. 354, 448]- Balbeer

Singh Vs. State of Madhya Pradesh, 2012 Cr. L.R. (M.P.) 145 : 2012 (I)

MPWN 254 : 2012 (2) M.P.H.T. 50

[Ref.] Sec. 360, 361 - Benefit of probation- Offence u/ss. 325 and

323- Prayer for granting probation- Benefit of probation refused only

on the ground of serious offence- Dispute regarding field - Civil suit

is also pending- No special reason given by the Sessions Court - First

facts of the case benefit of probation given. - Ishwarlal & Ors. Vs.

State of Madhya Pradesh, 2011 Cr. L.R. (M.P.) 667

[Ref.] Sec. 360, 361 - Conviction u/ss. 452 and 323 I.P.C. - Benefit

of probation not given - Prayer for granting probation - Petitioners

are labourers and first offenders - No reasons assigned for not

granting benefit of probation - Held, It is a fit case and benefit of

probation granted. - Annu & Anr. Vs. State of Madhya Pradesh, 2011

Cr. L.R. (M.P.) 661

[Ref.] Sec. 360, 361 - Offence u/s. 143 of Railways Act - Benefit of

probation not extended- First offence - No previous conviction -

Imprisonment of 3 months only - Held, Benefit of probation given. -

Manmohan Vs. State of Madhya Pradesh, 2011 Cr. L.R. (M.P.) 666

[Ref.] Sec. 360, 361 - Offence u/ss. 279, 337, 338 and 304 - A–Prayer

for granting benefit of probation–Incident is of the year 1991–

Mechanical Inspector not examined–Held, Considering the facts of

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the case benefit of probation is allowed. – Habib Patel Vs. State of

Madhya Pradesh, 2011 Cr. L.R. (M.P.) 697

[Ref.] Sec. 360, 361–Revision–Prayer for granting benefit of

probation–Offence u/s. 324/34 I.P.C.–17 years of old case– Courts

below not given any reasons for not granting probation–No previous

conviction–First offence– Held, It is a fit case for granting benefit of

probation.– Manak Lal & Ors. Vs. State of Madhya Pradesh, 2011 Cr.

L.R. (M.P.) 655

[Ref.] Sec. 362, 360, 482– Conviction u/s. 498-A–Petition to grant

benefit of probation since the petitioner's service is likely to be

affected adversely-Family dispute between the parties–Held, It is

made clear that the conviction of the petitioner shall not affect his

service career.– Dinesh Swami Vs. State of Madhya Pradesh Thro' P.S.

Badnawar, Distt. Dhar, 2011 Cr. L.R. (M.P) 614

[Ref.] Sec. 372 Proviso–Order passed in appeal challenged–

Maintainability – No specific provision of 2nd appeal in criminal

case–Order of conviction or acquittal passed in appeal is not

appealale–Held, Appeal is not maintainable and appellant is directed

to take steps for converting the appeal into revision.– Srikrishan Vs.

Deenbandhu & Ors. 2013 Cr. L.R. (M.P.) 107.

8.4 Overview of Supreme Court’s Case

Researcher has used some cases of Supreme Court (reportable by

Supreme Court) to taken overview of Supreme Court. Under mentioned

cases Supreme Court has been given full illustration & guidelines to the

grant of probation. Supreme Court observed that in what manners trial

court should grant probation and when it should not be considered by

appropriate authority.

By all means, in recent cases Supreme Court has brought proper

attention in Sec.4, sec.12 of probation of offenders act, 1958 and

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Sec.360, Sec.361 of Criminal Procedure Code, 1973. Thus, there are

some important leading cases which have decided by the Supreme Court.

Researcher is giving full details of that particular case under the

following with brief facts of all cases to the overview of the Supreme

Court.

The view of Supreme Court is shown very clearly towards those

offenders who come under probation of offenders act, 1958 with study of

these cases widely. On the study of these cases we find that some time

Supreme Court vision was very strong and Supreme Court had rejected

such S.L.P but some time the Special Leave Petitions have been admitted

by the Supreme Court.

Infect the submission of appeal is depended on the particular facts

of that case, respectability of offenders, nature of offence, and previous

conviction of accused.

DETAILS OF SOME CURRENT DECIDED CASES OF SUPREME

COURT

(a) Reference

In The Supreme Court Of India Criminal Appellate Jurisdiction Criminal

Appeal No.171 Of 2013 (@ Special Leave Petition (Crl.) No. 4378 Of

2012)

Shyam Lal Verma

...Appellant

Versus

Central Bureau Of Investigation

....Respondent

Brief Facts: The appellant is a retired employee of Post Office. The

incident occurred in 1993-94. The allegation against him is that he

misappropriated to the extent of Rs.1,35,240/- (Rupees one lakh thirty

five thousand and two hundred forty). The employees of various

departments deposited their amount, but the appellant did not remit the

amount and failed to make entry in the ledger. He was charged under

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Section 477-A IPC read with Section 3(1)(c) and 13(2) of the Prevention of

Corruption Act 1988.

The only point for consideration in this appeal is, whether the

Probation of Offenders Act is applicable to offences under the Prevention

of Corruption Act? The Trial Court applied Probation of Offenders Act

and sentenced him accordingly. This was reversed by the High Court and

ultimately imposed substantive sentence of one year.

It is not in dispute that the issue raised in this appeal has been

considered by this Court in 2004 (4) SCC 590

– State Through SP, New Delhi Versus Ratan lal Arora wherein in

similar circumstances, this Court held that since Section 7 as well as

Section 13 of the Prevention of Corruption Act provide for a minimum

sentence of six months and one year respectively in addition to the

maximum sentences as well as imposition of fine, in such circumstances

claim for granting relief under the Probation of Offenders Act is not

permissible. In other words, in cases where a specific provision

prescribed a minimum sentence, the provisions of the Probation Act

cannot be invoked. Similar view has been expressed in 2006 (11) SCC

473 – State Represented by Inspector of Police, Pudukottai, T.N. Vs. A.

Parthiban.

In view of the settled legal position, we find no valid ground to interfere

with the impugned order of the High Court.

Decision: Consequently, the appeal is dismissed. In view of the dismissal

of the appeal, the appellant shall surrender and has to undergo

remaining period of sentence. His bail bonds executed pursuant to our

order dated 05.07.2012 shall stand cancelled.

Comments: Supreme Court observed, there is no merit in petition and

court dismissed this appeal to grant probation benefit to the accused.

(295)

(b) Reference


Appeal No. 1547 Of 2013

Girraj Prasad Meena

...Appellant

Versus

State of Rajasthan & Ors.

...Respondents

Brief Facts: This appeal has been preferred against the impugned

judgment and order dated 23.4.2012 passed by the High Court of

Judicature of Rajasthan (Jaipur Bench) in S.B. Criminal Misc. Petition

No. 1260 of 2012, by which the High Court rejected the application filed

by the appellant under Section 482 of Code of Criminal Procedure, 1973

(hereinafter referred to as `Cr.P.C.’) for setting aside the judgment and

order dated 15.7.2011 passed by the Judge, Gram Nyayalaya, Gangapur

City, District Sawai Madhopur, Rajasthan, in Case No. 269 of 2011,

whereby the trial court has allowed the application of the respondents-

accused for pleading guilty for the offences punishable under Sections

323 and 343 of the Indian Penal Code, 1860 (hereinafter referred to as

the `IPC’) and has further given them the benefit of Section 12 of the

Probation of the Offenders Act, 1958, (hereinafter referred to as the `Act

1958’), in the case arising out of FIR No. 115 of 2009 lodged at Police

Station Wazirpur under Section 365 IPC.

Facts and circumstances giving rise to this appeal are that: The

learned Magistrate passed an order under Section 156 (3) Cr.P.C. for the

investigation whereunder FIR No. 115 of 2009 under Section 365 IPC

was lodged on the complaint filed by one Kamlesh Meena, who is

brother-in-law of the appellant, alleging that the appellant had been

kidnapped by the private respondents alongwith other accused when he

was returning from the school duty as a teacher.

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Police investigated the matter, located the appellant from village

Jeevli on 4.7.2009 and recorded the statements of various persons under

Section 161 Cr.P.C, and the statement of the appellant was recorded

under Section 164 Cr.P.C. After completing the investigation, the police

filed a charge sheet dated 4.8.2010 against the accused – namely private

respondents only for offences punishable under Sections 323, 343 read

with Section 34 IPC.

After filing of the charge sheet, the trial commenced. On 3.1.2011,

the court ordered the presence of the witnesses for recording their

statements on 9.6.2011. However on the said date, the summons were

issued to three witnesses, including the appellant for recording their

evidence on 7.7.2011. But on the date so fixed, the trial could not

proceed.

On 15.7.2011, both the accused-respondents appeared before the

learned trial court and filed an application pleading guilty for the

offences under Sections 323 and 343 IPC. The said application was

entertained forthwith and the learned trial court concluded the trial on

that day itself, without issuing notice to the appellant, convicting the

respondents under Sections 323 and 343 IPC and imposing a fine of

Rs.500/-, and further granting them the benefit of provisions of Sections

3 & 12 of the Act 1958. The learned Magistrate further held that the

order passed in criminal case herein shall not have any adverse affect on

the government service of the accused persons.

There are statutes which provide that persons who are convicted

for certain offences shall incur certain disqualifications. For example,

Chapter III of the Representation of the People Act, 1951, entitled

‘Disqualifications for membership of Parliament and State Legislatures’

and Chapter IV entitled ‘Disqualifications for Voting’ contain provisions

which disqualify persons convicted of certain charges from being

members of legislatures or from voting at elections to legislatures. That is

the sense in which the word ‘disqualification’ is used in Section 12 of the

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Probation of Offenders Act. [Therefore, it is not possible to accept the

reasoning of the High Court that Section 12 of the 1958 Act takes away

the effect of conviction for the purpose of service also.”

The provision of the Act 1958 has been dealt with by this Court

elaborately in Sushil Kumar Singhal v. Regional Manager, Punjab

National Bank, (2010) 8 SCC 573, wherein after considering the

judgments of this court in Aitha Chander Rao v. State of A.P., 1981 Supp

SCC 17; Harichand v. Director of School Education, AIR 1998 SC 788;

Divisional Personnel Officer, Southern Railway & Anr. v. T.R.

Chellappan, AIR 1975 SC 2216; and Trikha Ram v. V.K. Seth & Anr., AIR

1988 SC 285, the court held as under: “In view of the above, the law on

the issue can be summarised to the effect that the conviction of an

employee in an offence permits the disciplinary authority to initiate

disciplinary proceedings against the employee or to take appropriate

steps for his dismissal/removal only on the basis of his conviction. The

word “disqualification” contained in Section 12 of the 1958 Act refers to a

disqualification provided in other statutes, as explained by this Court in

the above referred cases, and the employee cannot claim a right to

continue in service merely on the ground that he had been given the

benefit of probation under the 1958 Act.”(See also: Karamjit Singh v.

State of Punjab, (2009) 7 SCC 178).

Thus, we are also of the considered opinion that the trial court had

no competence to make any observation having civil consequences so far

as the private respondents are concerned. The High Court rejected the

application under Section 482 Cr.P.C. filed by the appellant only on the

ground that the appellant neither challenged the order of taking

cognizance nor raised any objection at the time of reading over of the

charges to the accused. The High Court failed to appreciate that before

the statement of the appellant or any other witness could be recorded,

the trial court disposed off the matter on the date when the application

itself had been submitted admitting the guilt. Even otherwise if the trial

(298)

court wanted to entertain any issue of plea bargaining under Chapter

XXI- A, inserted w.e.f. 5.7.2006, then too the court was obliged

thereunder to put the victim to notice before extending any such benefits

that have been given in the present case.

Decision: The procedure therefore appears to have been clearly violated.

Therefore, in the facts and circumstances of the case, the appellant had

no opportunity to raise any grievance before the appropriate forum. In

view of the above, the appeal succeeds and is allowed.

(c) Reference


Appeal No. 1547 Of 2013

Girraj Prasad Meena

...Appellant

Versus

State of Rajasthan & Ors.

...Respondents

Brief Facts: This appeal has been preferred against the impugned

judgment and order dated 23.4.2012 passed by the High Court of

Judicature of Rajasthan (Jaipur Bench) in S.B. Criminal Misc. Petition

No. 1260 of 2012, by which the High Court rejected the application filed

by the appellant under Section 482 of Code of Criminal Procedure, 1973

(hereinafter referred to as `Cr.P.C.’) for setting aside the judgment and

order dated 15.7.2011 passed by the Judge, Gram Nyayalaya, Gangapur

City, District Sawai Madhopur, Rajasthan, in Case No. 269 of 2011,

whereby the trial court has allowed the application of the respondents-

accused for pleading guilty for the offences punishable under Sections

323 and 343 of the Indian Penal Code, 1860 (hereinafter referred to as

the `IPC’) and has further given them the benefit of Section 12 of the

Probation of the Offenders Act, 1958, (hereinafter referred to as the `Act

1958’), in the case arising out of FIR No. 115 of 2009 lodged at Police

Station Wazirpur under Section 365 IPC.

(299)

Facts and circumstances giving rise to this appeal are that: A. The

learned Magistrate passed an order under Section 156 (3) Cr.P.C. for the

investigation whereunder FIR No. 115 of 2009 under Section 365 IPC

was lodged on the complaint filed by one Kamlesh Meena, who is

brother-in-law of the appellant, alleging that the appellant had been

kidnapped by the private respondents alongwith other accused when he

was returning from the school duty as a teacher.

B. Police investigated the matter, located the appellant from village Jeevli

on 4.7.2009 and recorded the statements of various persons under

Section 161 Cr.P.C, and the statement of the appellant was recorded

under Section 164 Cr.P.C. After completing the investigation, the police

filed a charge sheet dated 4.8.2010 against the accused – namely private

respondents only for offences punishable under Sections 323, 343 read

with Section 34 IPC.

C. After filing of the charge sheet, the trial commenced. On 3.1.2011, the

court ordered the presence of the witnesses for recording their

statements on 9.6.2011. However on the said date, the summons were

issued to three witnesses, including the appellant for recording their

evidence on 7.7.2011. But on the date so fixed, the trial could not

proceed.

D. On 15.7.2011, both the accused-respondents appeared before the

learned trial court and filed an application pleading guilty for the

offences under Sections 323 and 343 IPC. The said application was

entertained forthwith and the learned trial court concluded the trial on

that day itself, without issuing notice to the appellant, convicting the

respondents under Sections 323 and 343 IPC and imposing a fine of

Rs.500/-, and further granting them the benefit of provisions of Sections

3 & 12 of the Act 1958. The learned Magistrate further held that the

order passed in criminal case herein shall not have any adverse affect on

the government service of the accused persons.

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E. Filing of charge sheet and taking cognizance has nothing to do with

the finality of charges, as charges framed after the cognizance is taken by

the court, can be altered/amended/changed and any charge can be

added at any stage upto the stage of conviction in view of the provisions

of Section 216 Cr.P.C. The only legal requirement is that, in case the trial

court exercises its power under Sections 228/251 Cr.P.C., the accused is

entitled to an opportunity of show- cause/hearing as required under the

provisions of Section 217 Cr. P.C. (Vide: Umesh Kumar v. State of A.P.,

JT 2013 (12) SC 213).

7. In fact, the appellant has been raising the grievance from the very

beginning that the police has not been investigating the case properly

and for that purpose, he had also approached the High Court by filing

Writ Petition No. 14272 of 2009, wherein several directions had been

issued by the Division Bench of the High Court of Rajasthan to the

Director General of Police for a fair investigation vide orders dated

10.2.2010 and 11.8.2010. In the statement of the appellant recorded

under Section 164 Cr.P.C. before the learned magistrate, appellant has

given a full version as to how he had been kidnapped while returning

from school duty and forcibly lifted by the private respondents and five

others in a Innova Car and was illegally detained from 29.6.2009 till

4.7.2009 when he was located by the police. Appellant named 7 persons

and serious allegations of criminal intimidation, threats, terrorising and

causing physical harm had been levelled. The police after concluding the

investigation filed a charge sheet only against the two accused and, that

too, only for the offences punishable under Sections 323 and 343 IPC.

8. Had the trial court applied its mind to the material collected during

investigation and particularly the statement recorded under Section 164

Cr.P.C., the charges could have been framed also under Section 365 IPC.

In that case, the Gram Nyayalaya would have no jurisdiction to deal with

the matter as the maximum sentence for that offence is 7 years

imprisonment with fine, and the Magistrate in that situation, was bound

(301)

to commit the matter to the Sessions court. Further, before the

statements of the witnesses could be recorded, the private respondents

filed an application admitting their guilt. Had the statements of the

witnesses been recorded, perhaps the court could have issued summons

to other accused under Section 319 Cr.P.C. or charges could have been

amended/altered/modified under Section 216 Cr.P.C. More so, at that

stage, the appellant was not heard as no notice had been issued to him.

The trial court proceeded in great haste and disposed off the matter on

15.7.2011 the same date when the application was filed by the private

respondents.

9. On the said facts, we are of the considered opinion that the learned

trial court proceeded not only in great haste, but adopted a procedure

not known in law, and the judgment and order of the trial court therefore

stands vitiated.

10. In State of U.P. v. Ranjit Singh, AIR 1999 SC 1201, this Court has

held that the High Court, while deciding a criminal case and giving the

benefit of the U.P. First Offenders’ Probation Act, 1938, or similar

enactment, has no competence to issue any direction that the accused

shall not suffer any civil consequences. The Court has held as under:

Decision: In view of the above, the appeal succeeds and is allowed. The

judgment and order of the trial court dated 15.7.2011 as well as of the

High Court dated 23.4.2012 are set aside. The matter is remitted to the

trial court to be decided afresh in accordance with law. As the matter is

very old, we request the trial court to conclude the trial afresh adopting

the procedure as explained hereinabove expeditiously, preferably within

a period of six months from the date of filing certified copy of the order

before it. Before parting with the case, Supreme Court clarified that we

have expressed no opinion on the merits of the ensuing trial.

(302)

(d) Reference


Appeal No. 1985 Of 2010 With CRL.A.No.1990/2010,

CRL.A.No.1991/2010, Crl.A.No.1992/2010 And CRL.A.No.342/2011

Nanak Ram

Appellant(s)

versus

State of Rajasthan

.. Respondent(s)

Brief facts: This judgment shall dispose of three appeals in Criminal

appeal Nos.1985 of 2010 filed by the appellant Nanak Ram/Accused and

Criminal Appeal No.342 of 2011 filed by appellants/Accused Mohan Ram

and Surja Ram against their conviction and sentence, and Criminal

Appeal Nos. 1991 of 2010, 1990 of 2010 and Criminal Appeal No.1992 of

2010 filed by the State of Rajasthan for the enhancement of the sentence

against the above mentioned accused, respectively.

2. The case of the prosecution in brief is as follows : PW 7 Shera Ram is

the younger brother of deceased Shivji Ram and they had obtained land

from Gram Panchayat towards the western side of the village and

obtained Pattas for the said land. Accused Bhera Ram and accused

Chuna Ram are real brothers while accused Surja Ram and accused

Mohan Ram are sons of accused Sadula Ram. Accused Bhera Ram and

Sadula Ram told Shivji Ram and Shera Ram that they will not allow

them to take the land and will snatch it from them. Two months prior to

occurrence Shivji

Ram and Shera Ram erected fencing around their land whereupon

the accused Bhera Ram and other accused were seriously annoyed over

the same. On the occurrence day i.e. on 29.5.1983 at 10.30 a.m. Shivji

Ram and both his younger brothers were repairing/re-erecting the

fencing in their land, accused persons Bhera Ram, Sadula Ram and his

sons Mohan Ram and Surja Ram, Gordhan Ram, Nanak Ram and Chuna

(303)

Ram, all duly armed entered into Bara from south side and started

dismantling the fence. Shivji Ram and his brothers questioned the same

by saying that they have obtained Patta from the Panchayat. Thereupon

Bhera Ram and Surja Ram simultaneously inflicted Barchhi blow on the

head of Shivji Ram, as a result of which he fell down and all the accused

attacked him with their weapons. Shera Ram intervened and accused

Mohan Ram inflicted Barchhi blow which landed on the left side of his

head and accused Chuna Ram inflicted the jei blow on his right leg. Then

all the accused started beating whereupon his sister Dhuri came running

and fell upon Shera Ram in order to protect him. PW 11 Balu Ram and

PW 2 Mangi Lal who were present at the occurrence place were

threatened by the accused and they got frieghtened and saw the

occurrence standing by the side of the road. After that all the accused

went away. Shivji Ram died on the spot.

We are of the considered view that imposition of 7 years rigorous

imprisonment on each of the appellants for the conviction under Section

304 Part I IPC would meet the ends of justice. We sustain the other

conviction and sentences imposed on the appellants. We are also of the

view that the appellants are not entitled for release on probation.

Decision: In the result Criminal Appeal No.1990 of 2010, 1991 of 2010

and 1992 of 2010 preferred by the State of Rajasthan against the

accused persons Nanak Ram, Mohan Ram and Surja Ram are partly

allowed and their conviction for the offence under Section 304 Part II IPC

read with Section 149 IPC and the sentences of 5 years rigorous

imprisonment each are set aside and instead they are convicted for the

offence under Section 304 Part I read with Section 149 IPC and

sentenced to undergo seven years rigorous imprisonment each. All other

convictions and sentences imposed on them by the High Court are

maintained. Criminal Appeal No.1985 of 2010 and 342 of 2011 are

dismissed.

(304)

(e) Reference:

In The Supreme Court Of India

Criminal Appellate Jurisdiction

Criminal Appeal Nos. 47-48 Of 2012

(Arising out of S.L.P. (Crl.) No. 7872-7873 of 2010)

State of Punjab .... Appellant(s)

Versus

Balwinder Singh and Ors. .... Respondent(s)

Facts: (On 30.10.1992, one Dhian Singh-the Complainant(PW-3), after

attending the last rites of one of his relatives at Village Mustabad,

Amritsar was returning to Batala along with his family members in a

Jhang Transport Bus bearing No. PB-02-D-9485. The bus was being

driven at a very high speed by the driver-Respondent No. 1 herein. When

the aforesaid bus reached the bus stand at Mudhal, at that time, a truck

bearing No. PB-02-C-9665 which was being driven by Respondent No. 2

herein was coming from the opposite side at a very high speed. Both the

drivers were driving their vehicle at a very high speed and in rash and

negligent manner, as a result of which, both the vehicles collided with

each other and two passengers, namely, Darshan Singh s/o Bela Singh

and Banso w/o Ajit Singh died at the spot. The other passengers,

namely, Sonia, Dalbir Singh and Ramandeep were taken to the Civil

Hospital but later on they succumbed to their injuries. On the basis of

the complaint of Dhian Singh, FIR No. 125/92 was registered under

Sections 304A, 279 and 337 of IPC and after formal investigation the

case was forwarded to the Court of Judicial Magistrate, Ist Class,

Amritsar. The Judicial Magistrate, by order dated 14.12.1998, convicted

both the accused persons and directed them to undergo rigorous

imprisonment for 2 years each for the offence under Section 304A and to

pay fine of Rs. 200/- each, in default, to further undergo rigorous

imprisonment for two months and to also undergo rigorous

imprisonment for a period of six months each for the offence punishable

(305)

under Sections 337 and 279 IPC. Aggrieved by the judgment and order

dated 14.12.1998, the accused persons preferred an appeal before the

Additional Sessions Judge, Amritsar. Vide judgment dated 20.05.2000,

the Additional Sessions Judge upheld the judgment and orderpassed by

the Judicial Magistrate, Ist Class, Amritsar. Questioning the same, the

respondents herein filed Criminal Revision Petition being Nos. 653 and

655 of 2000 qua nature of offence and quantum of sentence before the

High Court. The High Court, by order dated 04.11.2009, while confining

to the question of quantum of sentence only, reduced the sentence of the

accused persons to the period already undergone (15 days) and in

addition thereto, enhanced the fine to an amount of Rs. 25,000/- each.

Against the order of the High Court, the State of Punjab has filed these

appeals before this Court by way of special leave petitions. Heard Mr.

Ashok Aggarwal, learned senior counsel for the appellant and Mr. Sudhir

Walia and Mr. K.G. Bhagat, learned counsel for the respondents.Before

the High Court, the respondents, who preferred the revisions, did not

dispute the finding relating to negligence rendered by the courts below

and confined their submissions to the quantum of sentence only and

prayed that the sentence be reduced to the period already undergone. In

support of the above claim, they pointed out that they had suffered a

protracted trial for about 17 years and had already undergone custody

for 15 days, therefore, prayed for lenient view by modifying the sentence.

On the other hand, on behalf of the State, it was submitted that

inasmuch as the negligence was proved beyond reasonable doubt,

therefore, no leniency should be shown to the accused. The High Court,

without taking note of the seriousness of the matter, namely, due to the

negligence of the two drivers, five persons traveling in the bus died,

merely because of protracted trial of about 17 years and both of them

had served sentence for a period of 15 days, reduced the same to the

period already undergone and enhanced the fine to an amount of

Rs.25,000/- each. It is not in dispute that the trial Court on appreciation

(306)

of evidence and accepting the prosecution witnesses convicted the

respondents for an offence under Section 304A. The said section reads as

under: 304A. Causing death by negligence.- Whoever causes the death of

any person by doing any rash or negligent act not amounting to culpable

homicide, shall be punished with imprisonment of either description for

a term which may extend to two years, or with fine, or with both.”

Section 304A was inserted in the Penal Code by the Indian Penal Code

(Amendment) Act 27 of 1870 to cover those cases wherein a person cause

the death of another by such acts as are rash or negligent but there is no

intention to cause death and no knowledge that the act will cause death.

The case should not be covered by Sections 299 and 300 only then it will

come under this section. While considering the quantum of sentence to

beimposed for the offence of causing death or injury by rash

andnegligent driving of automobiles, one of the prime considerations

should be deterrence. The persons drivingmotor vehicles cannot and

should not take a chance thinking that even if he is convicted he would

be dealt with leniently by the Court. For lessening the high rate of motor

accidents due to careless and callous driving of vehicles, the courts are

expected to consider all relevant facts and circumstances bearing on the

question of sentence and proceed to impose a sentence commensurate

with the gravity of the offence if the prosecution is able to establish the

guilt beyond reasonable doubt. In the light of the above principles, we

express our inability to accept the reasoning of the High Court in

reducing the sentence of imprisonment to the period already undergone,

that is, 15 days. Merely because the fine amount has been enhanced to

Rs.25,000/- each, is also not a sufficient ground to drastically reduce the

sentence, particularly, in a case where five persons died due to the

negligent act of both the drivers of the bus and the truck.

Judgment : Accordingly, Supreme Court set aside the impugned order of

the High Court and impose a sentence of rigorous imprisonment for six

months with a fine of Rs. 5,000/- each. The trial Court is directed to take

(307)

appropriate steps for surrender of the accused in both the appeals to

serve the remaining period of sentence. The appeals are allowed to the

extent mentioned above.

Comment: In this case, Supreme Court allowed the appeal to grant

probation benefit to the accused.

(f) Reference


Civil Appellate Jurisdiction

Civil Appeal No. 6423 Of 2010

(Arising out of SLP (C) NO. 4216 OF 2008)

Sushil Kumar Singhal …Appellant

Versus

The Regional Manager,

Punjab National Bank …Respondent

Brief Facts: This appeal has been preferred against the Judgmentand

Order dated 10.09.2007 passed by High Court of Punjab & Haryana in

Civil Writ Petition 14014 of 2007, by which the High Court had

dismissed the writ petition for quashing the award dated 3rd January,

2007, passed by the Central Government Industrial Tribunal-cum-

Labour Court-II at Chandigarh (hereinafter called as, “Tribunal”), by

which the Tribunal had upheld the dismissal of the appellant from

service on the ground of conviction of the appellant in criminal case

involving moral turpitude.Facts and circumstances giving rise to the

present case are that the appellant was appointed as a Peon in the

respondent-Bank, Kaithal Branch, on 01.12.1971 and stood confirmed

on the said post vide order dated 28.12.1977. The appellant was handed

over cash of Rs.5000/-, to deposit the same as dues for the Telephone

Bill in the Post Office. However, it was not deposited by the appellant,

therefore, the bank lodged FIR No. 171 under Section 409 of Indian Penal

Code, 1860 (hereinafter called “lPC”) against the appellant, on

27.04.1982, in Police Station, City Kaithal. Appellant was tried for the

(308)

said offence. After conclusion of trial, the appellant was convicted by the

competent Criminal Court vide Judgment and Order dated 28.01.1988.

The respondent-Bank issued a Show Cause Notice dated 01.03.1988 to

the appellant, proposing dismissal from service and asked the appellant

to show cause within a period of seven days. The appellant submitted the

reply dated 08.03.1988. However, the respondent-Bank dismissed the

appellant from service vide order dated 09.03.1988. Being aggrieved, the

appellant raised an industrial dispute under the Industrial Disputes Act,

1947 and the matter was referred to the Tribunal. In the meanwhile, the

appeal filed by the appellant against the order of conviction was decided

by the appellate Court vide judgment and order dated 29.5.1989. The

appellate Court maintained the conviction, but granted him the benefit of

probation under The Probation of Offenders Act, 1958 (hereinafter called

as, Act 1958) and released the appellant on probation. The Tribunal

made the award dated 03.01.2007, rejecting the claim of the appellant

and holding his dismissal from service to be justified and in accordance

with law.

Judgment: The conviction in a criminal case is one part of the case and

release on probation is another. Therefore, grant of benefit of the

provisions of Act, 1958, only enables the delinquent not to undergo the

sentence on showing his good conduct during the period of probation. In

case, after being released, the delinquent commits another offence,

benefit of Act, 1958 gets terminated and the delinquent can be made

liable to undergo the sentence. Therefore, in case of an employee who

stands convicted for an offence involving moral turpitude, it is his

misconduct that leads to his dismissal. Undoubtedly, the appellant was

convicted by the Criminal Court for having committed the offence under

Section 409 IPC and was awarded two years’ sentence. The appellate

court granted him the benefit of Act, 1958. The Tribunal rejected his

claim for re-instatement and other benefits taking note of the fact that

appellant was given an opportunity by the Management to show cause as

(309)

to why he should not be dismissed from service. The appellant submitted

his reply to the said show cause notice. The Management passed the

order of dismissal in view of the provisions of the Act, 1949. The Tribunal

also took into consideration the contents of the Bi-Partite Settlement

applicable in the case and rejected the appellant’s claim. The High Court

considered appellant’s grievance elaborately as is evident from the

impugned judgment. We could not persuade ourselves, in the aforesaid

fact-situation, that any other view could also be possible. In view of the

above, we find no force in the appeal and it is accordingly dismissed. No

order as to costs.

Comments: Supreme Court denied appeal for benefit of probation to the

accused.

(g) Reference



Criminal Appeal No. Of 2008

(Arising out of SLP (Crl.) No. 8113 of 2007)

M/s Precious Oil Corporation and Ors. ...Appellants

Versus

State of Assam ...Respondent

Brief Facts: Challenge in this appeal is to the judgment of a learned

Single Judgeof the Guwahati High Court upholding the conviction of the

appellants foroffence punishable under Section 7(1)(a)(i) of the Essential

Commodities Act, 1955 ( in short the ‘Act’). The allegation was that the

appellant had violated Clause 3 of the Lubricating Oil and Greases

(Processing, Supply & Distribution Regulation) Order, 1987 (in short the

‘Control Order’). Simple imprisonment of one month and fine of

Rs.3,000/- each with default stipulation was awarded to the accused

persons. The prosecution against the accused-appellants was initiated on

the basis of an offence report submitted by Sir Dhiraj Choudhury,

Inspector of Food and Civil Supplies, Assam, Guwahati PW-3 alleging

(310)

inter-alia that on 1-10-1996 he along with two other Inspectors of Food

and Civil Supplies Department visited the processing industry of

lubricating oil belonging to the appellant no.2, situated near Lankeswar,

Jalukbari, Guwahati and on such inspection, it was found that the

concern did not possess necessary license as required under the Control

Order and also proper books of account etc as required under the law

were not produced. The inspecting team found that no license could be

produced for the processing unit and thereby violated Clause 3 of the

Control Order. The accused had failed to obtain proper license as

required under law within 6 months of commencement of processing and

thereby has violated clause 5(5) of the Control Order. The inspecting

team collected and sent the samples of lubricating oil for necessary

analysis to thee approved laboratory. After such analysis, it was found

that the said lubricating oil could not be considered as Automotive

Lubricating Oil, thereby violating Clause 4 of the Control Order attracting

punishment for sale of adulterated seized from the appellants re-refined

lubricating oil in 380 sealed tins of 1 lubricating oil. The team litre each,

1,210 litres in 6 barrels containing 205 litres each, 19,475 litres of used

lubricating oil in 95 barrels containing 205 litres in each, 20 kgs. of

grease in one loose barrel, 920 numbers of empty tins of 1 litre capacity

for TOPOL 20 W/40, one book of accounts, an extract copy of the Display

Board of Stock and Prices displayed in the office premises, 3 litres of

TOPOL, 20 W/46 contained in 3 sealed tins. The inspector having found

prima facie violation of Clauses 3, 4 and 5(5) of the Control Order

punishable under Section 7 of the Act, submitted the offence report

against the appellants in the Court of the learned Sessions Judge,

Kamrup for necessary prosecution under the law. The accused-appellant

no.1 is the concern itself and the accused No.2 is the Proprietor of the

concern and accused no.3 is an employee of the concern. On the basis of

the aforesaid offence report, Sp1. Case No.5 of 97 was registered in the

Court of the learned Sessions Judge, Guwahati Summons having been

(311)

served, the appellants appeared in the case and vide order dated

19.8.1997, the learned trial judge explained the offences to them about

allegations of contravention of Clauses 3, 4 and 5(5) of the Control Order

punishable under Section 7(1)(a)(i) of the Act. Accused persons pleaded

not guilty and therefore trial was held.

Judgment: There are occasions when an offender is so anti-social that

his immediate and sometimes prolonged confinement is the best

assurance of society’s protection. The consideration of rehabilitation has

to give way, because of the paramount need for the protection of society.

We are, therefore, recommending suitable amendment in all the Acts, to

exclude probation in the above cases.” In the current Indian conditions

the probation movement not attained sufficient strength to correct these

intractables. Maybe, under more developed conditions a different

approach may have to be made. For the present we cannot accede to the

invitation to let off the accused on probation. The aforesaid position was

also highlighted in Pyarali K. Tejani v. Mahadeo Ramchandra Dange and

Ors. (1974 (1) SCC 167). Above being the position, there is no merit in

this appeal which is accordingly dismissed.

Comments: Supreme Court dismissed this appeal under the demerits of

facts above mentioned and refused to grant probation benefit to the

accused.

(h) Reference


Civil Appellate Jurisdiction

Civil Appeal No. 6423 Of 2010

(Arising out of SLP (C) NO. 4216 OF 2008)

Sushil Kumar Singhal …Appellant

Versus

The Regional Manager,

Punjab National Bank …Respondent

(312)

Brief facts: This appeal has been preferred against the Judgment and

Order dated 10.09.2007 passed by High Court of Punjab & Haryana in

Civil Writ Petition 14014 of 2007, by which the High Court had

dismissed the writ petition for quashing the award dated 3rd January,

2007, passed by the Central Government Industrial Tribunal-cum-

Labour Court-II at Chandigarh (hereinafter called as, “Tribunal”), by

which the Tribunal had upheld the dismissal of the appellant from

service on the ground of conviction of the appellant in criminal case

involving moral turpitude. Facts and circumstances giving rise to the

present case are that the appellant was appointed as a Peon in the

respondent-Bank, Kaithal Branch, on 01.12.1971 and stood confirmed

on the said post vide order dated 28.12.1977. The appellant was handed

over cash of Rs.5000/-, to deposit the same as dues for the Telephone

Bill in the Post Office. However, it was not deposited by the appellant,

therefore, the bank lodged FIR No. 171 under Section 409 of Indian Penal

Code, 1860 (hereinafter called “lPC”) against the appellant, on

27.04.1982, in Police Station, City Kaithal. Appellant was tried for the

said offence. After conclusion of trial, the appellant was convicted by the

competent Criminal Court vide Judgment and Order dated 28.01.1988.

The respondent-Bank issued a Show Cause Notice dated 01.03.1988 to

the appellant, proposing dismissal from service and asked the appellant

to show cause within a period of seven days. The appellant submitted the

reply dated 08.03.1988. However, the respondent-Bank dismissed the

appellant from service vide order dated 09.03.1988. Being aggrieved, the

appellant raised an industrial dispute under the Industrial Disputes Act,

1947 and the matter was referred to the Tribunal. In the meanwhile, the

appeal filed by the appellant against the order of conviction was decided

by the appellate Court vide judgment and order dated 29.5.1989. The

appellate Court maintained the conviction, but granted him the benefit of

probation under The Probation of Offenders Act, 1958 (hereinafter called

as,” Act 1958) and released the appellant on probation. The Tribunal

(313)

made the award dated 03.01.2007, rejecting the claim of the appellant

and holding his dismissal from service to be justified and in accordance

with law.

Judgment: The Management passed the order of dismissal in view of the

provisions of the Act, 1949. The Tribunal also took into consideration the

contents of the Bi Partite Settlement applicable in the case and rejected

the appellant’s claim. The High Court considered appellant’s grievance

elaborately as is evident from the impugned judgment. Supreme Court

could not persuade ourselves, in the aforesaid fact-situation, that any

other view could also be possible. In view of the above, Supreme Court

find no force in the appeal and it is accordingly dismissed. No order as to

costs.

Comment: Accordingly the above facts Supreme Court refused the

benefits of probation to the accused.

(i) Reference



Criminal Appeal No. _________of 2009

[Arising out of Special Leave Petition (Criminal) No. 7722 of 2008]

Sarju @ Ramu … Appellant

Versus

State of U.P. … Respondent

Brief facts: This appeal by special leave arises out of a judgment and

order dated 30th January 2008 passed by a learned single judge of the

High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in

Criminal Appeal No. 491 of 1991 whereby and where under the judgment

of conviction and sentence dated 4th September 1991 passed by the V

Additional Sessions Judge, Barabanki in Sessions Trial Nos. 393 of 1989

and 395 of 1989 convicting the appellant for commission of an offence

punishable under Section 8/21 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short, “NDPS Act”) and sentencing him to

(314)

undergo 10 years’ rigorous imprisonment as also the fine of Rs.1 lakh,

and in default, to undergo one year’s rigorous imprisonment, was

affirmed. Shrikant Mishra was the Station House Officer (SHO) of

Safdarganj Police Station situate in the district of Barabanki. He and

other members of the police party were on a patrolling duty. They came

out of the Police Station in the night of 5th January 1989 with Constable

No.56 Ram Shankar Srivastava (P.W.3) and Constable No.277 – Vidya

Prasad Pandey. They reached near a village commonly known as

“Baghaura” in the official jeep No. UHG 4682, which was driven by one

Satyadev Ojha.. An informer allegedly reported to the appellants as also

one Shobhalal of village Baghaura and Ramdutt @ Dutta of village

Bariarpur illegally selling morphine in packets to the truck drivers and

the people of the area. According to the said informer, they were said to

have been sitting on the road side near the mill of one Vishwanath

Kashyap from 6 O’clock in the morning. Appellant along with said

Shobhalal and Ramdutt were said to have been identified by the said

police party to be sitting on the road side at about 6.15 a.m. They

became a bit perplexed and frightened after seeing the police party.

Judgment:

Supreme court referred to Section 33 of the NDPS Act. Section 33

of the NDPS Act reads as under: “33. Application of section 360 of the

Code of Criminal Procedure, 1973 and of the Probation of Offenders Act,

1958.- Nothing contained in section 360 of the Code of Criminal

Procedure, 1973 (2 of 1974) or in the Probation of Offenders Act, 1958

(20 of 1958) shall apply to a person convicted of an offence under this

Act unless such person is under eighteen years of age or that the offence

for which such person is convicted is punishable under Section 26 or

Section 27.” He, therefore, misread the entire provision. We do not see

any reason as to why such a provision had to be resorted to in the case

of one of the accused only. The High Court, in our opinion, also should

have drawn the attention of the learned trial judge on the glaring mistake

(315)

committed by him. For the reasons aforementioned, the impugned

judgment cannot be sustained. It is set aside accordingly.

The appeal is allowed. The appellant is in custody. He is directed

to be set at liberty forthwith unless wanted in any other case.

Comment: Supreme Court allowed this appeal and order to taken benefit

of probation law of the accused.

(j) Reference

Criminal Appeal No. 911 OF 2009

[Arising out of SLP (Crl.) No. 1527 of 2008]

Bala Baine Linga Raju …Appellant

Versus

State of A.P. …Respondent

Brief Facts: Appellant is before court aggrieved by and dissatisfied with

a judgment and order dated 23.04.2007 passed by a learned Single

Judge of the High Court of Judicature at Andhra Pradesh in Criminal

Appeal No. 1159 of 2002 whereby and whereunder it, while upholding

the judgment and conviction of sentence passed by the learned

Additional Sessions Judge under Section 304 Part I of the Indian Penal

Code and setting aside the order of sentence of imprisonment of seven

years, released the appellant under the Probation of Offenders Act, 1958

(for short “the Act”) by purporting to grant appropriate amount of

compensation to PW-2, directing:“…Thus, it is ordered that the appellant

shall be released under Section 4 of Probation of Offenders Act, 1958 on

his executing a personal bond for Rs. 10,000/- to keep peace for a period

of two years and on his further payment of compensation of Rs.

1,00,000/- (Rupees one lakh only) to P.W.2, wife of the deceased, under

Section 5 of the Probation of Offenders Act, 1958. As the provisions of

the Probation of Offenders Act, 1958 do not provide for default sentence

in case of failure to pay compensation and provide only for recovery of

the same as fine, it is specifically ordered that the compensation awarded

shall be treated as the one under Section 357 Cr.P.C. as well and in case

(316)

of failure on the part of the appellant to pay compensation, he shall

undergo imprisonment for three years. Time for payment of

compensation is three months from the date of receipt of a copy of this

order.” This Court while issuing notice directed the appellant also to

show cause as to why the sentence shall not be enhanced.

Before, however, we consider the merit of the matter, we may

notice the factual matrix involved herein. The parties are neighbours. The

incident took place on 24.08.1999 at village Chilkur. Allegedly, PW-2,

wife of the deceased while feeding her child scolded him describing him

as mischievous. Accused No. 2 thought that the said remarks of PW-2

were directed against her. She and her husband picked up a quarrel with

PW-2. The deceased, the husband of PW- 2, came there and got himself

involved in the quarrel. Appellant who was inside the house came out

with a scissor and stabbed the deceased.

Judgment: Section 4 of the Act empowers the court to release a person

on probation of good conduct, subject to the conditions that the offence

is not punishable with death or imprisonment for life. Only in the event,

the provisions of the said Act are applicable, Section 6 of the Act can be

taken recourse to. Appellant was charged with commission of an offence

under Section 302 of the Indian Penal Code. He has been found guilty

under Section 304 Part I thereof which provides for imprisonment for life

or imprisonment of either description of a term which may extend to

imprisonment for life. In this view of the matter, the provisions of the Act

are not applicable. Mr. Anand submits that the learned Trial Judge has

not heard the appellant on the question of sentence as is provided for

under Sub-section(2) of Section 235 of the Code of Criminal Procedure.

Although the learned counsel is correct, but keeping in view the fact that

the conviction of the appellant was under Section 304 Part I of the Indian

Penal Code, Supreme Court are of the opinion that even otherwise the

sentence imposed on him is just and proper. Therefore, have no

hesitation in holding that the High Court was not correct in invoking the

(317)

provisions of the Act. While setting aside that part of the judgment of the

High Court, Supreme Court restore the judgment of conviction and

sentence passed by the learned Trial Judge. The appeal is disposed of

with the aforementioned directions.

Comment: Supreme Court favoured to previous appeal before High

Court and disposed matter to the probation services to the accused.

(k) Reference



Criminal Appeal No.171 Of 2013

(@ Special Leave Petition (Crl.) No. 4378 OF 2012)

Shyam Lal Verma ...Appellant

Versus

Central Bureau Of Investigation ....Respondent

Brief Facts: The appellant is a retired employee of Post Office. The

incident occurred in 1993-94. The allegation against him is that he

misappropriated to the extent of Rs.1,35,240/- (Rupees one lakh thirty

five thousand and two hundred forty). The employees of various

departments deposited their amount, but the appellant did not remit the

amount and failed to make entry in the ledger. He was charged under

Section 477-A IPC read with Section 3(1)(c) and 13(2) of the Prevention of

Corruption Act 1988. After fullfleged trial, the Trial Court convicted him

under the above mentioned Sections. However, instead of awarding

sentence, the Trial Court released the appellant under the Probation of

Offenders Act,1958 on executing a personal bond in the sum of

Rs.50,000/- and furnishing two sureties each of the like amount for a

period of one year. He was also directed to maintain peace and good

behaviour during this period.

Judgment: Consequently, the appeal is dismissed. In view of the

dismissal of the appeal, the appellant shall surrender and has to undergo

(318)

remaining period of sentence. His bail bonds executed pursuant to our

order dated 05.07.2012 shall stand cancelled.

Comments: Supreme Court cancelled bail, bond of the accused and not

in favoured to grant probation benefit to the accused.

(l) Reference



Crl.M.P . No . 7477 Of 2012

In

S.L.P(Crl.) No.2430 of 2012

Sunil Kumar …Petitioner

Versus

State of Haryana …Respondent

Brief Facts: Once it had been commented that anti-social elements i.e.

FERA violators, bride burners and whole horde of reactionaries have

found their safe haven in the Supreme Court and such a comment

became subject matter of contempt of this Court and had to be dealt with

by this Court in P.N. Duda v. P. Shiv Shanker & Ors., AIR 1988 SC 1208.

This Court in Rathinam v. State of Tamil Nadu & Anr., (2011) 11 SCC

140 quoted the observations made by the Page 2 High Court in that case

expressing its views that common man must feel assured to get justice

and observed as under: “Let not the mighty and the rich think that courts

are their paradise and in the legal arena they are the dominant players.”

These judgments make one thing crystal clear that criminals do not

hesitate approaching courts even by abusing the process of the court and

some times succeed also. The instant case belongs to the same category.

Petitioner feels that merely because he is a black-marketeer and

succeeded in exploiting the helplessness of the poor people of the Society

and is capable of engaging lawyers, he has a right to use, abuse and

misuse the process of the court and can approach any court any time

without any hesitation and without observing any required procedure

(319)

prescribed by law. An FIR dated 15.9.1998 was lodged against the

petitioner and one other person under Section 7 of Essential

Commodities Act, 1955 (hereinafter called the Act 1955) as they were

found in possession of 1370 litres of blue kerosene and indulging in

unauthorised sale thereof in violation of the provisions of Section 7 of the

Act, 1955. After completing investigation chargesheet was filed and trial

commenced. The trial court vide judgment and order dated

27.10.1999/2.11.1999 found them guilty of the said offence and

awarded sentence of imprisonment for one year alongwith a fine of

Rs.2,000/- each. Against the aforesaid order, the appeal of the petitioner

stood dismissed by the High Court vide judgment and order dated

30.7.2010. Petitioner preferred an application dated 25.7.2011 before the

High Court for modifying the aforesaid judgment and order dated

30.7.2010 giving him the benefit of the provisions of Section 360 of Code

of Criminal Procedure, 1973 (hereinafter called Cr.P.C.) and/or Section 4

of the Probation of Offenders Act, 1958 (hereinafter called the Act 1958).

The said application was dismissed vide impugned order dated

19.9.2011. It may be pertinent to mention that against the judgment and

order dated 30.7.2010, the petitioner had filed SLP (Crl.) no.1469 of 2011

on 13.10.2011 which was dismissed by this Court vide order dated

27.1.2012. Subsequent thereto this special leave petition has been filed

on 29.2.2012 challenging the order dated 19.9.2011. No explanation has

been furnished as why the present petition could not be filed during the

pendency of the earlier SLP or both the orders could not be challenged

simultaneously as the order impugned herein had been passed much

prior to the filing of the first SLP on 13.10.2011, and petitioner

surrendered to serve out the sentence only on 13.1.2012. The High Court

dealt with various propositions of law while dealing with the averments

raised on his behalf including the application of the provisions of Section

362 Cr.P.C. which puts a complete embargo on the criminal court to

reconsider any case after delivery of the judgment as the court becomes

(320)

functus officio. This Court in a recent judgment in State of Punjab v.

Davinder Pal Singh Bhullar & Ors. etc., AIR 2012 SC 364 dealt with the

issue considering a very large number of earlier judgments of this Court

including Vishnu Agarwal v. State of U.P. & Anr., AIR 2011 SC 1232 and

came to the conclusion.

Judgment: Therefore, the court should not lightly resort to the

provisions of the Act 1958 in case of an accused found guilty of offences

under the Prevention of Food Adulteration Act. In M/s. Precious Oil

Corporation & Ors. v. State of Assam, AIR 2009 SC 1566, this Court

dealt with the issue of application of the Act 1958 in case of offences

punishable under Section 7 of the Act, 1955. The Court did not grant the

benefit of the said provisions to the appellant therein placing reliance

upon the judgment of this Court in Pyarali K. Tejani v. Mahadeo

Ramchandra Dange & Ors., AIR 1974 SC 228 wherein this Court has

held as under: “The kindly application of the probation principle is

negatived by the imperatives of social defence and the improbabilities of

moral proselytisation. No chances can be taken by society with a man

whose anti-social operations, disguised as a respectable trade, imperil

numerous innocents. He is a security risk. Secondly, these economic

offences committed by white-collar criminals are unlikely to be dissuaded

by the gentle probationary process. Neither casual provocation nor motive

against particular persons but planned profit-making from numbers of

consumers furnishes the incentive - not easily humanised by the

therapeutic probationary measure.” Thus, in view of the above, the relief

sought by the petitioner cannot be granted. Petition is misconceived and

untenable. The petition being devoid of any merit, is accordingly

dismissed with the cost of Rs.20,000/- which the petitioner is directed to

deposit within a period of four weeks with the Supreme Court Legal

Services Authority and file proof thereof before the Registrar of this

Court, failing which the matter be placed before the Court for appropriate

direction for recovery.

(321)

Comment: Supreme Court dismissed this appeal after hearing and not

favoured to grant probation benefit to the accused.

CONCLUDING REMARKS:

In above mentioned cases Supreme Court has provided new

dimension of probation law and has developed new guidelines for

the application on probation of offenders act, 1958. and

questioned , varied high irregularities in proceedings of lower

courts and given direction strongly to adopt recent guidelines

during any disposal of probation of offenders petition in courts.

Supreme court has observed main issue and given very sharp

judgments related to probation of offenders act, 1958. some quotation

/citations have been described on above mentioned cases and some

refined lines of that cases have been selected by the researcher which

has given under the following:-

In Sunil Kumar V/S State of Haryana …,the supreme court

had not accepted petitioner on the ground of unnecessary delay to

file appeal and overviewed that Delay condoned. but in the another

special leave petition of SHYAM LAL VERMA V/S CENTRAL BUREAU OF

INVESTIGATION , Supreme court admitted his appeal and leave granted

after having this view that By the impugned order, the High Court

allowed the appeal of the CBI and sentenced him for a period of one year

under Sections 477-A IPC and under Section 13(1)(c) read with Section

13(2) for a further period of one year. Both the sentences were directed to

run concurrently. Questioning the order of the High Court sentencing

him, as stated above, the accused preferred the present appeal by way of

special leave. Heard learned senior counsel appearing on behalf of the

appellant and learned counsel appearing on behalf of the respondent-

CBI. The only point for consideration in this appeal is, whether the

Probation of Offenders Act is applicable to prevention of correction act

In the Bala Baine Linga Raju … V/S State of A.P. …

(322)

Supreme Court observed that the learned Trial Judge has not

heard the appellant on the question of sentence as is provided for under

Sub-section (2) of Section 235 of the Code of Criminal Procedure.

Although the learned counsel is correct, but keeping in view the fact that

the conviction of the appellant was under Section 304 Part I of the Indian

Penal Code, we are of the opinion that even otherwise the sentence

imposed on him is just and proper. We, therefore, have no hesitation in

holding that the High Court was not correct in invoking the provisions of

the Act. While setting aside that part of the judgment of the High Court,

we restore the judgment of conviction and sentence passed by the

learned Trial Judge. The appeal is disposed of with the aforementioned

directions.

IN SARJU @ RAMU … V/S STATE OF U.P. …, The Supreme Court

observed and admitted petitioner SLP , LEAVE GRANTED For the

reasons aforementioned, the impugned judgment cannot be sustained. It

is set aside accordingly. The appeal is allowed. The appellant is in

custody. He is directed to be set at liberty forthwith unless wanted in any

other case.

Supreme Court's view –

A distinction however has been drawn by the Apex Court (between

such cases under the enactments already in force when the Probation of

Offenders Act, 1958 came into force and those under the enactments

enacted afterwards. Both the Secs. 3 and 4 of this Act providing the

benefit of probation to the offenders containment-obstante clauses and

thus override the provisions of any law laying down minimum sentence

for any offence and thereby restricting the application of these sections.

The views expressed as above therefore, appear to be legally sound and

correct so far as the minimum sentence is concerned. The non-obstante

clauses in Secs. 3 and 4 will however, not apply to offences under the

enactments passed after the enforcement of Probation of Offenders Act,

1958.

(323)

This matter earlier came up for consideration before the Supreme

Court in Superintendent, Central Excise, Bangalore v. Bahubali,1 in a

case under Defence of India Act, 1962 and it was held therein that in

cases where a specific enactment, enacted after the Probation of

Offenders Act prescribes a minimum sentence of imprisonment, the

provision of Probation of Offenders Act cannot be invoked if the Special

Act contains any provision to enforce the same without reference to any

other Act containing a provision, in derogation of the special enactment,

there is no scope for extending the benefit of Probation of Offenders Act

to the accused. Relying on the said decision the Apex Court in a recent

case of State through S.P., New Delhi v. Ratan Lal Arora, 2 has held

that unlike the provisions contained in Sec. 5(2) of the old Prevention of

Corruption Act of 1947 providing for imposition of a sentence lesser than

the minimum sentence of one year therein for any "special reasons" to be

recorded in writing, the present Act of 1988 did not carry any such power

to enable the Court concerned to show any leniency below the minimum

sentence stipulated.

Consequently the High Court committed a grave error in extending

the benefit of Probation of the Offender who had committed the offences

under Secs. 7 and 13(2) of the Prevention of Corruption Act, 1988

punishable with the minimum sentence of imprisonment for six months

and one year respectively.

After the verdict of the Supreme Court the law now seems to be

well-settled that the provisions of Probation of Offenders Act, 1958

cannot be invoked in the cases under an enactment prescribing

minimum sentence of imprisonment where it was enacted after the

enforcement of the Probation of Offenders Act, 1958 but there is not

such bar to extend the benefit of probation in the cases covered under

the earlier enactments.

1 A.I.R. 1979 S.C. 1271. 2 (2004) 2 J.C.C. 1053.

(324)

The Supreme Court in Chhanni v. State of U.P.3 reiterated that

enforcement of Probation of Offenders Act, 1958 in particular area

excludes the applicability of provisions of Section 360 of Code of Criminal

Procedure, 1973 and the scope of Section 4 of the Probation of Offenders

Act is much wider than that of Section 360, Cr.P.C., which relates only to

persons not under the age of 21 years, convicted for offence punishable

with fine only or with imprisonment up to 7 years, any woman convicted

of an offence not punishable with death or imprisonment for life.

Section 360, Cr.P.C. does not provide any role for Probation

Officers in assisting the Courts in relation to supervision and other

matters while Probation of Offenders Act does provide for it. Further,

Section 12 of the Probation of Offenders Act states that a person released

on probation shall not suffer any disqualification attached to conviction

of an offender under any law, but Section 360 of Cr.P.C. does not contain

any such provision. Therefore, by virtue of Section 8(1) of the General

Clauses Act, where the provisions of Section 360 of the Code of Criminal

Procedure will not be applicable.

In the instant case, the appellant was convicted for offence

punishable under Sections 304, Part II/323/149 and Section 147 of

I.P.C. and was sentenced to 5 years' rigorous imprisonment. On appeal

the High Court of Allahabad altered the conviction to that of simple hurt

under Section 323, I.P.C. and the sentence was reduced to one year. The

appellant raised the plea of benefit of release on probation under Section

360, Cr.P.C. or Section 4 of the Probation of Offenders Act. The Supreme

Court held that rejection of such application by the High Court was

proper as it was made subsequent to modification of sentence. The

Court, however directed the High Court to reconsider the case.

3 AIR 2006 SC 3051.

(325)

8.5 Overview of High Court of Madhya Pradesh

In present scenario, the Madhya Pradesh High Court observed new

dimensions for law of probation for the benefit of accused. There are

some leading cases where High Court of Madhya Pradesh pronounced

latest decisions for law of probation specially Madhya Pradesh.

Ramesh Kumar @ Heeralal vs The State Of M.P. on 8 May, 2012

Entitled to be given the benefit of Probation of the Offenders Act

and prayed to extend such benefit ... either for extending the acquittal or

benefit of Probation of the Offenders Act to the applicant and prayed for

dismissal in Madhya Pradesh High Court

The State Of M.P. vs Amarnath on 26 June, 2012

benefit of provisions of Section 3 of Probation of Offenders Act. 11.

Consequently, appeal filed by the State is hereby ... released on

probation under Section 3 of Probation of Offenders Act after giving due

admonition. 6 Criminal Appeal No.1887 in Madhya Pradesh High Court

The State Of M.P. vs Jagbandhu & Ors. on 29 June, 2012

alias Balram on probation under Section 3 of Probation of Offenders

Act. 14. Under such circumstances, since respondents ... after giving due

admonition under Section 3 of Probation of Offenders Act. 15. Presence

of the respondents is no more in Madhya Pradesh High Court

Rameshwari Malviya vs Sushila Dhruve on 26 July, 2012

wherein it has been held that benefit of Probation of Offenders Act (for

short 'the Act')to the accused ... well as Section 12 of the Probation of

Offenders Act, in the opinion of this court, it would be just in Madhya

Pradesh High Court

Sushila Dhurvey vs The State Of Madhya Pradesh on 26 July, 2012

wherein it has been held that benefit of Probation of Offenders Act (for

short 'the Act')to the accused ... well as Section 12 of the Probation of

Offenders Act, in the opinion of this court, it would be just in Madhya

Pradesh High Court

Jakir Khan vs The State Of Madhya Pradesh on 28 February, 2012

(326)

applicant may be enlarged on probation under the Probation of

Offenders Act. 7. At present there is no basis ... applicant is enlarged on

probation under the Probation of Offenders Act then due to that

conviction he may not lose in Madhya Pradesh High Court

Boocha @ Daulat Singh & Ors. vs The State Of M.P. on 21 February,

2012 view, the benefit of section 4 of the Probation of Offender Act be

extended to them. He further said that ... appellants or for extending the

benefit of Probation of Offenders Act to them or in any case to reduce

in Madhya Pradesh High Court

Deepak Kumar & Anr. vs The State Of M.P. on 25 January, 2012

submission firstly for extending the benefit of the Probation of the

Offenders Act to the appellants on the background that ... extending the

acquittal or extending the benefit of Probation of the Offenders Act or in

any case, for reducing at Madhya Pradesh High Court

Ajay Kumar & Ors. vs The State Of M.P. on 30 August, 2012

probation by granting the advantage of the Probation of Offenders Act.

However, the appellants have faced the trial and appeal at Madhya

Pradesh High Court

Kailash & Ors vs The State Of M.P. on 8 May, 2012

inclined to extend the benefit of the Probation of the Offenders Act to

them. Accordingly, it is held that ... entitled for extending the benefit of

Probation of Offenders Act. 6. Coming to consider the prayer of the

applicants' counsel at Madhya Pradesh High Court.

(327)

Reference

HIGH COURT OF MADHYA PRADESH ; JABALPUR

Cr.R.No. 1344/2000

Ramesh Kumar alias Heeralal.

Vs.

State of M.P.

Brief Facts:

The applicant/accused has preferred this revision under section 397

read with 401 of the Cr.P.C being aggrieved by Order dated 28.3.2000

passed by the II Add. Sessions Judge, Raisen in Cr.A.No.905/96 whereby

upholding his conviction under section 379 of the IPC awarded by the

trial court he has been directed to undergo for RI

1. ½ years with fine of Rs.200/-, in default of depositing such fine

amount for further 15 days .

2. The facts giving rise to this revision in short are that on 11.8.84,

the complainant Bhura Singh lodged the FIR (Ex.P/6) at Police

Station Dehgaon district Raisen contending that during the

intervening night of 8/9.8.84 some unknown person has stolen his

buffalow from village Dabur. After registration of the offence, the

matter was investigated. In pendency of such investigation, the

applicant was arrested in connection of section 102 of the Cr.P.C

by Police Station Dehat Vidisha and one buffalow was also seized

from him. On receiving such information by aforesaid Police

Station from P.S. Dehat Vidisha, the identification parade of said

buffalow was carried-out in which, the aforesaid complainant

identified the same as his buffalow. On completion of the 2

investigation the applicant was charge sheeted for his prosecution

under section 379 of the IPC. On framing the charge of such

offence, the applicant abjured the guilt, on which, the trial was

(328)

held. On appreciation of the evidence, after holding guilty to the

applicant for the aforesaid offence, he was sentenced for RI 2 years

with fine of Rs.200/-.

3. On filing the appeal by the applicant, by affirming the aforesaid

conviction, his jail sentence was reduced from 2 years RI to 1 ½

years RI by maintaining the amount of fine. Accordingly, the

appeal was dismissed, on which, the applicant has come to this

court with this revision.

4. It is apparent fact on record that during trial the applicant was

remained in judicial custody between the period 9.6.96 to 20.6.96

i.e 11 days, between 14.9.99 to 17.9.99 i.e 3 days, between 27.8.99

to 1.9.99 i.e 6 days and from the date of passing the judgment by

the trial court on 2.9.99 till passing the impugned judgment by the

appellate court 28.3.2000 the applicant suffered the jail sentence

out of the awarded jail sentence. On filing the present revision, he

was released on bail in compliance of the order dated 27.11.2000

suspending his jail sentence but subsequently, on account of non-

appearance of the applicant in compliance of the aforesaid bail

order, in compliance of order dated 3.8.2001 in execution of the

warrant of arrest, he was taken into custody and sent to jail and as

per proceedings dated 8.10.2001, based on some information from

the Central Jail, Bhopal, the applicant has been released from

such jail after suffering the entire jail sentence including the

sentence imposed in default of depositing the fine amount.

5. Smt Pratibha Mishra, counsel of the applicant after taking me

through the record of the trial court including the evidence led by

the parties as well as the exhibited papers of the charge sheet

argued that on proper appreciation of the evidence, the impugned

conviction of the applicant is not sustainable. In 3 continuation

she said that in case the impugned conviction is affirmed by this

court then in that circumstance considering the fact that the

applicant did not possess any criminal antecedents and he being

first offender, is entitled to be given the benefit of Probation of the

(329)

Offenders Act and prayed to extend such benefit to the applicant

by allowing this revision.

6. On the other hand, Ku Vandana Shrivastava, learned Panel

Lawyer, by justifying the impugned conviction and sentence of the

applicant argued that the same being based on proper appreciation

of the evidence is in conformity with law and the same does not

require any interference at this stage either for extending the

acquittal or benefit of Probation of the Offenders Act to the

applicant and prayed for dismissal of this revision.

7. Having heard the counsel, keeping in view their argument, I have

carefully gone through the record. It is apparent from the record

that immediately after theft of the buffalow, the complainant

lodged the FIR (Ex.P/6). In investigation, after recovery of the

buffalow from the applicant on carrying-out the identification

parade (Ex.P/3), such buffalow was identified by the complainant

in presence of Sarpanch of the village as his buffalow. On

recording the deposition complainant Bhura Singh (PW 1) has

proved the FIR . His testimony is further supported by the

independent witnesses Mohan Singh who is also the witness of the

identification para (Ex.P/3). The identification parade is further

proved by the Sarpanch Mahendra Singh (PW 4) by whom such

parade was carried-out. The recovery of such buffalow from the

possession of the applicant has been proved by Narmada Prasad

Sahu (PW 7) the retired Asst. Sub Inspector of Police as he seized

the buffalow by preparing the seizure memo (Ex.P/2) from the

possession of the applicant and the same has been proved by him

in his deposition. So, in the aforesaid premises even on re-

appreciation of the evidence, I have come to this 4 conclusion that

the trial court as well as the appellate court have not committed

any error in appreciation of the evidence in holding guilty to the

applicant for the aforesaid offence. In such premises, the findings

of the courts below holding guilty to the applicant is hereby

affirmed.

(330)

8. Coming to consider the alternate prayer of the applicant for

extending the benefit of Probation of the Offenders Act to the

applicant is concerned, looking to the nature of the offence and the

manner in which it was committed by the applicant as he has

committed theft of buffalow of his known person, I am not inclined

to extend the benefit of Probation of the Offenders Act to the

applicant, hence, such prayer of the applicant's counsel is hereby

rejected. As the applicant has already suffered the awarded jail

sentence for the aforesaid offence including the sentence imposed

in default of depositing the fine amount, therefore, after affirming

his conviction and sentence, nothing remains in this revision for

adjudication.

Decision

In view of the aforesaid, this revision being devoid of any merits, by

affirming the impugned judgment holding conviction and sentence

against the applicant, is hereby dismissed.

Comments:-

High Court of Madhya Pradesh observed, there is no merit in this petition

and denied to grant probation benefits to the accused thus petition

dismissed.

Reference

W (2008) 1 MLJ (Crl) 1181 (SC)

Sudesh Kumar Vs. State of Uttarkhand

Indian Penal Code ( 45 of 1860), Section 392 read with Section 34 -

Brief Facts:-

Probation of Offenders Act (20 of 1958), Sections 3,4, and 6 - Robbery

case – Convicted by trial Court - Appeal filed - High Court has confirmed

conviction - Order challenged - Before Supreme Court only one point was

urged that the accused at the time of commission of the crime was below

twenty one years, as such he claimed benefit of Section 6 of Probation of

(331)

Offenders Act (20 of 1958) - Accused who is below twenty one years of

age found guilty of having committed an offence punishable with

imprisonment which is not the imprisonment for life shall not be

sentenced to undergo imprisonment unless the Court is satisfied that

having regard to the nature of the offence and the character of the

offender, it is not desirable to deal with under Section 3 or 4 of Probation

of Offenders Act (20 of 1958) - Provision further mandates that the Court

can impose sentence of imprisonment who is below twenty one years of

age after recording reasons for doing so - Crucial date on which the age

had to be determined being not the date of offence, but the date of which

finding of guilty had to be passed - Decision of

Constitutional Bench in Pratab Singh V. State of Jharkhand

case AIR 2005 SC 2731 relating to reckoning date for determining the

age of juvenile under the Juvenile Justice (Care and Protection of

Children) Act (56 of 2000) would not be held to be a decision on

interpretation of Section 6 of Probation of Offenders Act (20 of 1958).

Judgement :-

Decisions interpreting various provisions of one statute will not have the

binding force while interpreting the provisions of another statute - Held,

true copy of the transfer certificate purported to have been issued by the

Principal cannot be said that it is credible evidence, particularly it was

not produced before the Courts below - Accused is not entitled to claim

the benefit under Section 6 of Probation of Offenders Act (20 of 1958),

since he was more than twenty one years on the date of judgment of

conviction. Further the benefit of Probation of Offenders Act (20 of 1958)

has not been raised before the trial Court and the High Court -

Conviction confirmed - Appeal dismissed.

(332)

Reference

Madhya Pradesh High Court

Mohammad Jabbar vs The State Of Madhya Pradesh on 30 August,

2012

HIGH COURT OF MADHYA PRADESH,

PRINCIPAL SEAT, JABALPUR

SINGLE BENCH

PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA

CRIMINAL APPEAL NO.1028/2012

Brief Facts

The appellants have preferred this appeal against the judgment dated

28.4.2012 passed by the learned Sessions Judge/Special Judge under

the SC/ST (Prevention of Atrocities) Act Singrauli in Special Case

No.07/2010 whereby the appellants were convicted and sentenced for

the following offences : Section Act Sentence Fine Sentence, in amount

default of payment of fine. 147 I.P.C Six months R.I. Nil Nil 148 I.P.C.

one year's R.I. Rs.500/- One month's R.I. 307 r/w I.P.C. Five year's R.I.

Rs.1000/- two month's R.I. 149 506(2) I.P.C. one year's R.I. Rs.500/-

One month's R.I. 2 Criminal Appeal No. 1028 of 2012 All the jail

sentence shall run concurrently.

2. The prosecution's case in short is that on 1.8.2010 at about 10.a.m in

the morning the victim Rangai (PW4) was going to a well to fetch some

water at village Kanji, Police Station Baidhan, District Singrauli. The

appellants came with sticks etc. and shouted upon the victim because a

civil case was pending against them lodged by the victim and thereafter,

they assaulted the victim by sticks causing him various injuries on his

legs and hands. The victim Rangai was taken to the hospital whereas his

son Babuaram (PW14) had lodged an FIR Ex.P/24 (Dehati Nalishi) with

the Police Officer, who came to the Nehru Hospital and thereafter, a case

was registered. Dr. Saurabh (PW8) examined the victim Rangai in Nehru

Century Hospital, Jayant and gave his report Ex.P/26. He found various

(333)

wounds on both of the legs and both of the hands of the victim Rangai.

Out of them one penetrated wound was found on left arm. Clinically he

found that the concerned bone of both the hands were broken. However,

he referred the patient for radiological examination. Dr. S. K. Mual

(PW16) examined the victim Rangai radiologically and found that he

sustained fracture of tibia and fibula bones in both the legs. In right leg,

patella bone was also found broken. In left hand, radius and ulna were

found broken. He gave his report Ex.P/33. Dr. Devnath (PW17) treated

the victim Rangai in the hospital and he gave a discharge report Ex.P/34.

The victim Rangai was discharged in a condition when both of his legs

were broken in so many pieces. After due investigation a charge sheet

was filed 3

Criminal Appeal No. 1028 of 2012

before the CJM, Singrauli who, committed the case to the Special

Judge/Sessions Court.

3. The appellants abjured their guilt. They did not take any specific plea

but, they have stated that the land in dispute was allotted to the

appellants and therefore, a stay was granted by the Tahsildar while the

victim was constructing a house in that land. Thereafter, a compromise

took place that Rangai shall continue in the house and land will be

cultivated by the appellants. On the previous day of the incident Rangai

started cultivation on the land by flouting the compromise. In defence

one Niazuddin (DW1) was examined.

4. Learned Special Judge under SC/ST (Prevention of Atrocities) Act

(hereinafter it may be referred as the 'Special Act') after considering the

evidence adduced by the parties convicted and sentenced the appellants

as mentioned above.

5. I have heard the learned counsel for the parties.

6. The learned counsel for the appellants have submitted that looking to

the entire incidence and the injuries caused to the victim Rangai, no

offence under Section 307 of I.P.C is made out. At the most offence under

(334)

Section 326 of I.P.C may constitute. In support of his contention, he

placed reliance on the judgment of Hon'ble the Apex Court in the case of

"Pashora Singh and another Vs. State of Punjab" (AIR 1993 SC 1256). It

is also submitted that the appellants did not assault the victim. There is

no specific allegation that who assaulted the victim. Common intention of

the appellants was no where established. It is no 4


where proved that an unlawful assembly was constituted. Under such

circumstances, the conviction directed by the trial Court is challenged. In

alternate it is submitted that the appellants would have been released on

probation or they could have been imposed with fine only. They remained

in the custody for few years and therefore, they may not be sent to the jail

again.

7. On the other hand the learned Public Prosecutor has submitted that

the conviction and sentence directed by the trial Court appears to be

correct and no interference is required in the appeal.

8. After considering the submissions made by learned counsel for the

parties it is to be considered that whether the appellants could not be

convicted for offence punishable under Section 307 of the I.P.C ?

Whether the appellants can be convicted for any offence with help of

Section 149 of I.P.C ? And whether the sentence imposed upon the

appellants can be reduced ?

9. Rangai (PW4), Babuaram (PW14) and Ramanuj (PW11) have stated

about the incident whereas Ramkaran (PW1), Dinesh Kumar (PW2),

Brahaspati (PW9) etc. have turned hostile. Babuaram son of the victim

has stated that due to terror of one Dactor Singh no independent witness

could say against the appellants. These witnesses have stated before the

Court by which it would be clear that their evidence is confirmed by the

medical evidence. The victim Rangai gave a dying declaration Ex.P/22

which was duly proved by the Naib Tahsildar, B. L. 5


(335)

Baheriya (PW5) but, Rangai took a somersault that he did not give any

dying declaration. It appears that since the third injury of the victim

Rangai was found to be punctured wound therefore, now he has turned

to say that the appellants had gandasas and ballams in their hand and

they assaulted him. However, looking to the injuries caused to the victim

Rangai and timely lodged Dehati Nalishi which was duly proved by the

witness Babuaram and the testimony of Babuaram, the entire

prosecution story is duly corroborated and it is established that the

appellants assaulted the victim by sticks causing him various injuries.

Out of them three injuries were grave.

10. The appellants took a plea of right of private defence but, in the

present case no right of private defence arose to the appellants. For the

sake of argument it may be presumed that the land was allotted to the

appellants and they were cultivating the land and if on the previous day

the victim Rangai ploughed the land by a tractor with the help of some

persons then on the next day i.e. the day of the incident no right of

private defence accrued to the appellants due to the act done by the

victim on the previous day. It is apparent that at the time of the incident

the victim was going to fetch some water and he was not doing anything

in the field. No right of private defence relating to the person or property

accrued to the appellants. Similarly, the appellants went with arms to

the spot and it is no where mentioned that the victim gave any sudden or

grave provocation to the appellants. On the contrary the appellants

assaulted the 6


victim in a forceful manner and therefore, it is established that they

assaulted the victim voluntarily. Similarly it is also established that each

of the appellant took part in the crime in assaulting the victim and the

victim sustained various injuries in the result and therefore, their

common intention and common object is also established. Five persons

assaulted the victim in such a manner therefore, it is clear that an

(336)

unlawful assembly was duly constituted. The trial Court has rightly

convicted the appellants for offence punishable under Section 148 of the

I.P.C. Offences under Sections 147 and 148 of I.P.C are of similar nature

and offence under Section 148 of I.P.C is grave and therefore, there is no

need to convict the appellants for offence punishable under Section 147

of I.P.C separately.

11. So far as the offence under Section 307 of I.P.C is concerned it is true

that the victim Rangai sustained three fractures in all. Two fractures on

both of his legs and one fracture on his right hand. Initially Dr. Saurabh

has stated that injuries caused to the victim Rangai were grave but, he

did not mention that the injuries were fatal in nature. The bones of the

victim Rangai were broken in legs and hands which are not fatal parts of

the body whereas, no injury was caused to the victim on any vital part of

the body. No any bone was found fractured which covered the vital part

of the body. No assault was caused by the appellants on the head, chest

or abdomen of the victim and the appellants caused only four injuries in

all to the victim. Under such circumstances, it is apparent that the

appellants were not 7


intended to kill the victim Rangai nor the injuries of the victim Rangai

were found to be fatal. Under such circumstances, in the light if

judgment passed by Hon'ble the Apex Court in the case of Pashora Singh

(supra) the appellants could not be convicted for the offence punishable

under Section 307 of the I.P.C. In the case of Pashora Singh (supra)

conviction was reduced from offence punishable under Section 307 of

I.P.C to one under Section 326 of I.P.C. In the present case there is no

prosecution story that the appellants assaulted the victim by any sharp

cutting weapon or deadly weapon therefore, in the present case looking

to the overt acts of the appellants only offence punishable under Section

325 of I.P.C will be constituted and therefore, the trial Court has erred in

convicting the appellants for offence punishable under Section 307 read

(337)

with Section 149 of I.P.C. They should be convicted for offence

punishable under Section 325 read with Section 149 of I.P.C.

12. So far as the sentence is concerned the appellants are in custody

since 4.8.2010 and therefore, they remained in the custody for more

than two years. Sentences granted for offence punishable under Sections

147, 148 and 506(2) of the I.P.C were already executed because it was

directed by the trial Court that the sentences shall run concurrently and

therefore, at present sentence for offence punishable under Section 325

of I.P.C is to be considered only.

Judgment:-

13. The appellants were first offenders and remained in the custody for

more than two years. But, looking to the their overt 8


Act they can not be released on probation. There is no ground by which

they may be released on probation. Similarly looking to the gravity of the

offences they cannot be released on imposition of some fine but, for the

offence punishable under Section 325 of I.P.C jail sentence of 2 or 2 ½

years would be sufficient in the present case. The appellants have

already undergone in the custody for more than two years and therefore,

it would be proper that their sentence may be reduced to the period

which they have already undergone in the custody with enhancement of

some fine.

14. On the basis of the aforesaid discussion the present appeal filed by

the appellants is hereby partly allowed. The conviction and sentence

directed by the trial Court for the offence punishable under Section 147,

148 and 506(2) of the I.P.C are hereby maintained but, conviction as well

as sentence directed for offence punishable under Section 307 read with

section 147 of the I.P.C is hereby set aside. The appellants are convicted

for offence punishable under section 325 read with section 149 of the

I.P.C and sentenced for the period which they have already undergone in

the custody but, a sum of Rs.2500/- is imposed as a fine for that offence

(338)

on each of the appellants. In default of payment of fine each of them

shall undergo for three months rigorous imprisonment in addition. All

the sentences shall run concurrently except of the default sentence.

15. The Registry is directed to prepare the supersession warrants

accordingly so that the appellants may be released forthwith if they

deposit the fine amount.

Reference

2010 -1- L.W.(Crl) 697

P.S. Sethuraman

Vs

P. Elavazhagan

Brief Facts:-

Negotiable Instruments Act, Section 147 (Amendments introduced

with effect from 6.2.2003 making he offence as compoundable offence),

Probation of Offenders Act, Section3, Criminal P.C., Section

361/Compounding of offence.

Revision was preferred against dismissal of petition filed before

Magistrate by the Accused under Section 258 r/w 320 Cr.P.C with a

prayer to treat the compromise memo filed by parties dated 07.10.2008

as compounding petition and to stop all the proceedings of the case and

to discharge the accused.

Question which arises for consideration is “Whether the court can

terminate the proceedings acting upon the payment made in full due

under the cheque during the pendency of the criminal proceeding, in the

absence of any request for withdrawal or for

compounding of the offence by the complainant?”.

Held: Receipt of the cheque amount has not been denied by the

respondent herein – But still, the respondent has not come forward for

(339)

settlement with the accused – If the trial Court comes to the conclusion

that the accused is guilty, then it is open to the learned

Judicial Magistrate to take into consideration about the payment made

by the accused and also take into consideration the other factors and to

show leniency while sentencing the accused – Even the learned Judicial

Magistrate may apply the relevant provision under Section 3 of the

Probation of Offenders Act and admonish him, subject to Section 361 of

Cr.P.C. Probation of Offenders Act , Secton 3-See Negotiable Instruments

Act, Section 147 (Amendments introduced with effect from 6.2.2003

making the offence as compoundable offence).

Criminal P.C., Section 361/Compunding of offence – See Negotiable

Instruments Act, Section 147 (Amendments introduced with effect from

6.2.2003 making the offence as compoundable offence), Probation of

Offenders Act, Section 3.

Held:

As per the petition filed by the accused, the learned counsel for the

respondent received demand draft and acknowledged it on the advise of

the learned Magistrate. Therefore, it is made clear, though the

complainant had been willing to compromise the matter, at a later stage

had changed his mind after receiving a sum of Rs. 4.5 lakhs out of the

cheque amount of Rs. 50 lakhs. The remaining amount of Rs. 50,000/-

also was received as demand draft. The complainant is not denying the

receipt of the amount of Rs. 5 lakhs which is the total cheque amount.

But, the complainant is not coming forward either to withdraw the

complainant or to compound the offence against he accused.

(340)

8.6 Overview of Another High Court’s Case Law

Case law

In Sunna V. State4, the accused aged twenty years was found

guilty of an offence under Section 380, I.P.C. for committing theft of a

bicycle and some clothes. The Court ordered his release after admonition

under Section 3 of the Probation of Offenders Act, 1958 because there

was no previous conviction of the accused and the theft was committed

due to sudden temptation without any premeditation.

In yet another case of Kehar Singh v. Regional Employment

Officer, Chandigarh5, the petitioner was convicted for the offence of

Section 380, I.P.C. and was dealt with under Section 4 of the Probation

of Offenders Act, 1958. He was removed from service consequent to the

decision of the Court. On appeal, he was reinstated on the ground that a

person released on probation suffers no disqualification attaching to his

conviction as provided under Section 12 of the Act.

Again, in case of Sanchu roy v. State of Asam6, where the

accused was about 19/20 years of age and had no previous criminal

antecedents was sentenced to one year R.I. Keeping in view the fact that

the accused was a tender age and the offence was committed ten years

ago, the Supreme Court directed him to be released on probation of good

conduct with a bond of Rs. 1000/- with one surety of like amount.

In the case of State of Karnataka v. M. Chandrappa7 and

another, the State filed an appeal against the order passed by the High

Court for release of the accused on probation. The Supreme Court

dismissed the appeal and observed that it was a fit case where accused

could be released on admonition with direction that conviction would not

4 AIR, 1967, Orissa, 4.

5 AIR, 1966, Punjab, 336.

6 (1987), Cr.L.J. 1378.

7 (1987), Cr.L.J. 950.

(341)

be a disqualification for holding post an continuance of service. In this

case, the accused assaulted a constable who was waiting for a bus that

would reach him to Police Station. He was found guilty of Sections 352

and 353, I.P.C. The accused was a teacher who had come to know that

there was some enquiry against him and this constable had enquired

about him. Hence seeing the constable, he abused him and assaulted

him under mental pressure. The Supreme Court held that the constable

could not be said to be engaged in executing his duty at the time of

incident and hence the accused was allowed the benefit of Section 3 of

the Probation of Offenders Act. The Apex Court has expressed a similar

view in its earlier decision in Rajbir v. State of Haryana8.

In Sunil Kumar Parida v. State of Orissa9, the Supreme Court

ordered the release of the accused who had undergone a part of his

imprisonment, giving him benefit of Section 3 and 4 of the Probation of

Offenders Act so that he could get the benefit of Section 12 of the Act and

may not be adversely affected by the disqualification attached with

conviction and imprisonment. The Court directed the accused to appear

before the Sub-Divisional Magistrate of Neelgirima and receive the

probation order within six weeks.

8.7 Overview of High Court of Madhya Pradesh

In the case of Gudda v. State of Madhya Pradesh10, the appellant

caused nineteen injuries to the complainant and was convicted under

Section 323, I.P.C. and sentenced to R.I. for one month and a fine of Rs.

500/-. In default of payment of fine, he was to undergo two months'

further R.I.In appeal against this conviction, the High Corut of Madhya

Pradesh held that it was not known to the Court as to who had caused

extra injuries, whether it was the appellant or the absconding accused

8 AIR, 1985, SC, 1278 (SC).

9 (1993) Cr.L.J. 544 (SC).

10 2000(1) Cr.L.J. 161(MP) )C.Cr.J. stands for Current Criminal Judgments).

(342)

named Vakeel. That apart, there was no dispute that the appellant was a

first offender and there was not previous criminal record against him. He

was, therefore, entitled to the benefit of Section 3 or 4 and 5 of the Act:

He would, however, pay the sum of Rs. 5000/- as compensation to the

victim who suffered as many as nineteen simple injuries.

The High Court of Madhya Pradesh held in the case of Raju v.

State of Madhya Pradesh11 that the benefit of first offender may be

available to an accused who caused simple hurt to the complainant

without any dispute and was convicted for an offence under Section 323,

I.P.C. because award of sentence is not mandatory for an offence under

this section and it may be punishable only with payment of fine. Thus

taking into consideration the totality of the circumstances, the Court

held that the accused persons who are rustic villagers deserve to be left-

off on payment of fine without extending the benefit of Section 3, 4 or 6

of the Probation Act.

In the case of Siya Saran v. State of Madhya Pradesh12, the

accused who was dissatisfied by the medical treatment given to his

brother in the Government Hospital by the Assistant Surgeon, first

insinuated the doctor about the improper manner of treatment meted out

to his brother and then gave him a fist blow on his face with the result

that a tooth of doctor was dislocated and his lip was cut. The appellant

was tried and found guilty of offences under Sections 33 and 506 Part II

of the Indian Penal Code and was sentenced to three years' and two

years' rigorous imprisonment respectively for the aforesaid offences. His

appeal to High Court was dismissed and, therefore, he appealed to the

Supreme Court.

In the case of Gulzar v. State of M.P.13 accused was convicted

for theft under Section 379, I.P.C. as he stole an attache containing cash

11

1999(2)C.Cr. J. 645(MP). 12

(1995) Cr.L.J. 2126(SC). 13

AIR 2008 SC 383.

(343)

from the bus in which the complainant was travelling on 25th December,

1992. The prosecution witnesses identified the attache and the cash

money of Rs. 55,000 was recovered from the possession of the accused.

He was, therefore, convicted and sentenced to undergo R.I. for three

years. Counsel for the appellant submitted that the appellant was

entitled to benefit of release on probation under Section 3 and 4 of the

Probation of Offenders Act or Section 360 of Cr.P.C. but the Courts below

the consideration of the material on record maintained the sentence and

declined to grant probation to the accused. While disposing of the appeal

filed by the appellant. The Supreme Court observed:

"Section 360 of Cr.P.C. relates to person not under 21 years of age

convicted for an offence punishable with fine only or with imprisonment

for a term of 7 years or less, to any person under 21 years of age or any

woman convicted of an offence not punishable with sentence of death or

imprisonment for life. The scope of Section 4 of Probation of Offenders

Act is much wider. It applies to any person found guilty of having

committed an offence which is not punishable with death or life

imprisonment.

Section 360, Cr.P.C. does not provide for any role for Probation

Officers in assisting the Courts in relation to supervision and other

matters while in Probation of Offenders Act does make such a provision."

The two statutes with such significant differences could not be

intended to co-exist at the same time in the same area as such a co-

existence would lead to anomolous results. Further, by virtue of Section

8(1) of the General Clauses Act, it is clear that where the provisions of

the Probation of Offenders Act, 1958 have been brought into force, the

provisions of Section 360 of Cr.P.C. would be wholly inapplicable.

In Gudda v. State of Madhya Pradesh14, the appellant caused 19

injuries to the complainant and was convicted under Section, I.P.C. and

14

2000(1) C.Cr.J. 161(M.P.) - (C.Cr.J. stands for Current Criminal Judgment).

(344)

sentenced to R.I., for one month and a fine of Rs. 500/- and to undergo

two months' R.I. in default of payment of fine. On appeal, the High Court

ordered the release of the appellant under Section 3 or 4 of the Probation

of Offenders Act and directed that he should pay a compensation of Rs.

5000/- to the victim who suffered as many as nineteen injuries.

Likewise, in the case of Raju and others v. State of Madhya

Pradesh, the appellants15 were convicted under Section 323, I.P.C. for

causing simple hurt to the complainant. The High Court in appeal

allowed the benefit of release on probation to the appellants on the

ground that award of sentence is not mandatory for an offence under

Section 323, I.P.C. and it may be punishable only with fine. Moreover,

the appellants being first-offenders and totality of circumstances of the

case demanded that they be let-off on payment of fine of Rs. 1000/- each

without extending the benefit of probation under Section 3 or 4 or 6 of

the Act. The Court further ordered that out of the fine so recovered, an

amount of Rs. 3000/- be paid to the complainant as a compensation for

the injuries suffered by him.

Case in which the offenders was allowed the benefit of release on

probation

In a criminal appeal, i.e., Raju Singh v. State of Madhya

Pradesh16, the appellants were convicted under Section 325/34 and 148,

I.P.C. the criminal act having been committed long back in 1985. There

was no previous conviction against the appellants and they had already

been in jail for one month. The High Court took the view that long

pendency of the case and harassment caused to the appellants for over a

decade, and the sentence award to them, justified leniency and they

deserve to be enlarged under Section 4 of the Probation of Offenders Act

on probation on execution of a bond of good conduct of Rs. 3000/- each

15

1999 (2) C.Cr.J. 645 (M.P.). 16

1995(2) Crime 700.

(345)

with two sureties in the like amount for a period of one year. The

appellants were, therefore, directed to appear before the ACJM,

Bementra on 30th March, 1995 to execute the bond.

The High Court of Rajasthan in the case of Rajoo v. State17,

allowed the benefit of release on probation to two accused convicted for

offences under Section 323 of I.P.C.

In State of Maharashtra v. Ramji Ramchandra Rokade18 and

another, three accused found guilty of offences under Section 353, I.P.C.

were admitted to the benefit of release on probation by the High Court of

Bombay. The accused, a cook employed in a Rest House, alongwith his

two sons assaulted a labourer who they alleged had spoiled the drinking

water. While the quarrel was going on, the complainant, a constable on

duty came there and intervened. According to the complainant, the three

accused gave him blows and abuses, while the version of the accused

was that the complainant interviewed and gave them blows. The accused

were convicted under Section 353, I.P.C., but were allowed the benefit of

probation because they had no previous conviction against them.

The Supreme Court in Prakash v. State of Madhya Pradesh19,

ordered the release of accused who was found guilty and convicted for an

offence under Section 324, I.P.C. on probation of good conduct keeping

in view that nature of his offence, the circumstances and antecedents of

the offender. In this case, the accused was an employee of the

Municipality, was a first offender and his offence was not premeditated

and the injury caused to the victim was not grave or serious. The

Supreme Court held that these grounds were sufficient to entitle the

accused to be released on probation.

17

1977 Cr.L.J. 837 (Raj.). 18

1976 Cr.L.J. 379 (Bom.). 19

1993 Cr.L.J. 119 (SC).

(346)

In Mohd Monir Alam v. State of Bihar20, a dispute arose between

the appellants and the injured person on 26th Feb., 1992 during

demarcation of the land between the deceased Imtiaz Ali and Manjoor

Alam, the uncle of the appellant, was being conducted by the Revenue

Amin. During the quarrel manjoor Ali, Kamuruddin, Monir Alam and

several others caught hold of Imtiaz and assaulted him with lathi. Imtiaz

fell on the ground whereafter Manjoor and Monir Alim again assaulted

him and when Md. Tufel, Fatma Khatoon and Ajmeri Nisa came to

intervene in favour of Imtiaz, they were also assaulted. Imtiaz and other

injured persons were carried to Barauti Hospital from where Imtiaz was

referred to Gopalganj and yet further to Patna where he succumbed to

injuries. Police Harilal was present at the scene of quarrel. A cross-case

was registered against the other set of accused. The trial Court acquitted

all the accused on the charge of murder but convicted them under

Section 304, Part II and 323 I.P.C. and sentenced to various terms of

imprisonment.

In R.B. Syed v. State21, the Supreme Court held that when the

accused is already on probation he can be allowed the benefit Section

4(2) of the Probation of Offender's Act, 1958, even now when he has

crossed the age limit of 21 years of age.

The Apex court in the case of State of Gujrat v. P.A. Chouhan22,

observed that the provisions of Section 4 of the Probation of Offenders

Act are not available to a convict who is sentenced to life imprisonment,

but when due to High Court's decision, the accused is already on

probation for the last six years, the Supreme Court would not like to

interfere in the matter.

20

A.I.R. 2010 (SC) 698. 21

1983 All India Cr.L.R. 3(SC). 22

A.I.R. 1983 SC 359.

(347)

In yet another case, namely Municipal Corporation Delhi v.

Rattanlal23, the respondent, on a complaint from the Municipal

Corporation, Delhi, was charged under Section 7 of the Prevention of

Food Adulteration Act, 1954, for selling adulterated cream-biscuits and

was convicted by the trial Court for six months and a fine of Rs. 1000/-

or four months' simple imprisonment in default. On appeal, the ADJ

upheld the sentence. The Municipal Corporation field a revision to the

High Court for enhancement of the sentence of the respondent keeping in

view the gravity of the offence of adulteration. The respondent pleaded

the benefit of Section 4 of the Probation of Offenders Act. Allowing the

benefit of probation to the accused, the Supreme Court observed that

there was no legal bar to release offenders convicted for food adulteration

on probation under the Act.

Again, in Vishnu Moorthi v. State of Mysore24, the Court held

that even in an offence of smuggling which is an anti-social activity

affecting the economy of the State, the offender can be released on

probation of good conduct if there are special circumstances to believe

that he has potentialities for reformation.

In Rahmatullah v. State, the High Court of Karnataka25 ordered

to release of the appellant on probation of good conduct under Section 4

of the Probation of Offenders Act, despite the fact that minimum

sentence of three months R.I. and a fine not less than rupees on hundred

was prescribed by the Karnataka Excise Act for an offence under Section

32 of that Act.

In the historic decision, namely, Ishwar Das v. State of Punjab26,

though the Supreme Court allowed the benefit of probation to an

adulterator, but leaving a note of caution the Court observed that

adulteration of food is a menace to public health an anti-social activity.

23

1971 (Cr.L.J.) 1485 (SC). 24

1971 Mys.L.J. 451. 25

1978 Cr.L.J. 109 (Kant). 26

A.I.R. 1972 (SC) 1295.

(348)

Therefore, the Court should not lightly resort to the provisions of the

Probation of Offenders Act in case of persons about 21 years of age who

are found guilty of offences under the prevention of Food Adulteration

Act, 1954.

The Supreme Court in Commandant 20th Bn. (ITBF) v. Sanjay

Vinjoa27, held that the offence under Section 10 of Central Reserve Police

Force Act, 1947 being of an ordinary nature the accused may be allowed

the benefit of release on probation for this offence.

In A.P. Raju v. State of Orissa28, the Supreme Court held that

where the accused was acquitted by the Trial Court for the offence of

negligent driving but convicted by High Court, and at present released on

bail for the last eight years, he may be granted benefit of release on

probation under Section 4 of the Probation of Offenders Act, on execution

of a bond for maintaining good behaviour and peace.

In Ladu Lal v. State of Rajasthan29, the accused was convicted

for voluntarily causing hurt to deter public servant for his duty under

Section 332, I.P.C. The incident has occurred twenty one years ago and

since then the accused were facing trial. The High Court of Rajasthan

found it a fit case to release the accused on probation on furnishing a

bond of Rs. 1000/-.

In the case of Satyanarayan v. State of Madhya Pradesh30, the

accused was found guilty of rash and negligent driving and causing

death by negligence (Section 304-A, I.P.C.). The accused (petitioner) was

a teacher by profession and was on the verge of retirement and the whole

family was entirely dependent on his sole earnings. If the conviction and

sentence of the accused were maintained, he would have been

terminated from service, which would have affected on his pensionary

benefits. The High Court of Madhya Pradesh observed that looking to the

27

A.I.R. 2001 (SC) 58. 28

1996(1) All India Cr.L.R. (SC) 452. 29

2003 Cri.L.J. NOC 78 (Raj). 30

2003 Cri LJ NOC 178 (M.P. Indore Bench).

(349)

special feature of the case that petitioner was a first offender, there was

no contrary report against him during his period of incarceration about

his conduct and the legal representatives of the deceased victims having

been paid substantial amount of compensation, the accused (petitioner)

could be granted the benefit of Section 4 and released on probation on

execution of bond.

Case in which the Benefit of Probation was defined to the offender:

In Ranjit Singh v. The State, the High court of Patna31 awarded

a sentence of six months' simple imprisonment and a fine of Rs. 1000/-

to the accused for the offence of forgery under Sections 467, 468, 471

and 420, I.P.C. Denying the benefit of release on probation to the

accused the Court observed that the case deserved no compassion

keeping in view the nature and gravity of the offence and the standing of

accused as an Advocate having a lucrative practice.

In Uttam Singh v. Delhi Administration32, the appellant was

convicted under Section 292, I.P.C. for being in possession of three

packets of playing cards and some obscene photographs. He was

sentenced to 6 months' R.I. and a fine of Rs. 500/-. The Supreme Court

refused to allow him the benefit of release on probation having regard to

his age of 36 years and the circumstances and the nature of his offence.

The Supreme Court in Somnath Puri v. State of Rajasthan33,

dismissed the appeal and held that the benefit of probation law cannot

be invoked in case of offence of fraudulent misappropriation falling under

Section 409, I.P.C. and Section 5(2) of the Prevention of Corruption Act,

1947, hence the High Court was right in maintaining the sentence of

appellant passed by the trial Court.

31

A.I.R. 1963 Patna 262. 32

(1977) 1 SCC 103. 33

A.I.R. 1972 SC 1490.

(350)

In the case of Rajender Dutt v. State of Haryana34, the accused,

a subordinate employee was found guilty of causing grievous hurt to his

superior officer and convicted under Sections 334 and 353 of I.P.C. He

has assaulted the said official due to erroneous belief that he was

instrumental in getting the accused transferred elsewhere. The Supreme

Court refused to interfere with the sentence and declined to allow the

benefit of probation to the accused as his act was premeditated and

could not be said to have been committed in excitement or under

emotional distress.

In Piyarey Lal v. State, the High Court of Allahabad35

emphasised that the Courts should not lightly resort to the provisions of

the Probation of Offenders Act, particularly in case of offenders who are

about 21 years of age. The sale of adulterated articles of food have

injurious effect on public health and, therefore, should be sternly death

with. In the instant case the accused Piyarey Lal was found guilty of the

offence under Section 7 read with Section 16 of the Prevention of Food

Adulteration Act, 1954. He was selling Kampats (a variety of sweets)

which were coloured red, yellow, orange and white by coaltar dye

containing rhodamine. The argument of the accused that he was not the

manufacturer of the said sweets and hence did not know about the

impurity was not accepted by the Court. Dismissing the revision, the

Court enhanced the sentence to six months with a fine of Rs. 1000/- and

in default to further suffer rigorous imprisonment for six months.

In M/s. Precious Oil Corporation & others v. State of Assam36,

the conviction of the appellants was upheld by the Single Judge of the

Gauhati High Court for offence punishable under Section 7(1)(a)(i) of the

Essential Commodities Act, 1955. The allegation was that the appellant

had violated Clause 3 of the Lubricating Oils and Greases (Processing,

34

(1993) Cr.L.J. 1025 (SC). 35

1977 Cr.L.J. 1034 (1036) (All). 36

A.I.R. 2009 SC 1566. The decision in Ishar Das v. State of Punjab, AIR 1972 SC 1295 is an authority on this

point.

(351)

Supply & Distribution) Regulation Order 1987. He was awarded simple

imprisonment of one month and fine of Rs. 3000/- each with default

stipulation. The accused had failed to obtain proper license as required

under the said Control Order and also failed to produce proper books

and account etc.

The Supreme Court refused to grant benefit of probation to cases

involving smuggling activities. Thus in State of Maharashtra v. Natwar

Lal37, the Apex Court refused to extend the benefit of Probation of

Offenders Act to a person convicted for smuggling under Section 135(1)

and (2) of the Customs Act, 1952 because smuggling of gold not only

affects public revenue and national economy but it is a menace to

society.

In Krishna Chandra v. Harbans Singh38, the accused, an

educated young man was found guilty of having committed house-

trespass in his negibhour's house and raped the neighbour's wife. The

Court held that the offender cannot be admitted to the benefit of

probation in view of the depravity of the offender despite the fact that the

victim and her husband had shown willingness to pardon the accused.

In Dalbir Singh v. State of Haryana39, The Supreme Court held

that the accused who caused death of a person due to rash and negligent

driving deserved no sympathy and, therefore, could not be allowed the

benefit of being released on probation under the Probation of Offenders

Act, 1958.

In State of Kerala v. K. Farid40, the accused was found guilty of

rash and negligent driving and convicted under Section 304-A, I.P.C. The

High Court of Karnataka held that since the accused was found guilty

and convicted for the said offence, hence Section 4 of the Probation of

Offenders Act could not be made applicable hi his case.

37

A.I.R. 1980 SC 593. 38

(1967) Raj LW 101. 39

A.I.R. 2000 SC 1677. 40

2005 Cri. L.J. 2993 (Kant).

(352)

The High Court of Delhi in Suresh v. State41, has held that

denial of benefit of release on probation without giving reasons is

improper and such an order is liable to be quashed.

In the case of State of Karnataka v. Erappa Kurugodeppa42, the

High Court held that they were convicted and sentenced with fine for the

offence punishable under Section 143 and 323 read with Section 149,

I.P.C., extending then benefit of release on probation under Section 4 of

the Probation of Offenders Act was illegal and, therefore, liable to be set

aside.

In Abdul Qayum v. State of Bihar43, the appellant aged 16 years

pick-pocketed Rs. 36/-. Despite Probation Officer's favourable report for

release on probation under Sections 4 and 6 of the Act, he was sentenced

to six months' rigorous imprisonment by the trial Court because of his

association with seasoned pick-pockets. On appeal, The Supreme Court

directed the trial Court to placed him on probation.

In the case of Kamaroonissa v. State of Maharshtra44, the

Supreme Court confirmed the sentence of accused, a girl below 21 years

of age who was convicted for theft denying her benefit of Section 6 of the

Probation of Offenders Act as she was a hardened criminal having

adopted thefts in running trains as per profession. Similar view was

taken by the Court in Prem Ballabh v. State45.

Again, in Jawahar v. State of West Bengal46, the appellant was

guilty and convicted for the offence of lurking house trespass with

intention to commit theft under Section 454, I.P.C. because he entered

the watch repairing shop and was caught stealing red-handed by the

informant with the help of some witnesses. The appellant was little less

41

1995 Cri.L.J. 3741 (Del.). 42

2000 CRi.L.J. 2163 (Kant). 43

A.I.R. 1972 SC 21. 44

A.I.R. 1968 Goa. 45

A.I.R. 1977 SC 56. 46

1995(2) Crimes 740 decided on 19.12-1994.

(353)

than 18 years at the time of occurrence (i.e., 4-9-1991) and there was no

adverse previous record against him.

In the case of Sanchu Ray v. State of Assam47, the accused was

about 19/20 years of age and had no previous criminal antecedents. He

was sentenced to one years' rigorous imprisonment by the trial Court.

Keeping in view the tender age of the accused and the offence having

been committed ten years ago, the Supreme Court deemed it a fit case for

the benefit of Section 6 of the Probation of Offenders Act and directed

him release on probation of good conduct with a bond of Rs. 1000/- with

one surety of like amount.

In Shankar Dass v. Union of India48, the Supreme Court took a

liberal view of the provision of Section 12 of the Probation of Offenders

Act and ordered the appellant to be reinstated in service. In this case, the

appellant had misappropriated Rs. 500/- from Delhi Milk Service and

thus committed the offence under Section 409, I.P.C. He pleaded guilty

and was therefore convicted by the Court but allowed the benefit of

released on probation under Section 4 of the Act. As a result of his

conviction, he was dismissed from service in April 1964. The Supreme

Court while deciding the appeal observed that in the instant case the

offence was committed under persona misery compounded by the

appalling law's delay. The Court further observed that a government

servant convicted on a criminal charge and released on probation cannot

be said to be liable to be dismissed in view of Section 12 of the Probation

of Offenders Act, which is a beneficial legislation. The Court, therefore,

set aside the order of the Delhi High Court and reinstated the appellant

in service.

In Trikha Ram v. V.K. Seth49, the Supreme Court reiterated that

an offender convicted for a criminal offence and released on probation

47

1987 Cr.L.J. 1378 (SC). 48

A.I.R. 1985 (SC) 772. 49

A.I.R. 1988 (SC) 285.

(354)

cannot be dismissed by the disciplinary authority in view of the

provisions contained in Section 12 of the Probation of Offenders Act as it

will operate as a disqualification for future employment. Hence the

dismissal of the accused was converted into removal from service.

However, in Union of India v. Bakshi Ram50, The Supreme Court

observed that release of offender on probation does not obliterate stigma

of conviction. In the instant case, the accused was dismissed from

service in view of his conviction under Section 10 of the Central Reserve

Police Force Act and the Court held that he was not entitled to

reinstatement in service upon getting the benefit of release of probation

of good conduct under Section 4 of the Probation of Offenders Act.

In Sunil Kumar Prida v. State of Orissa, the Apex51 Court

ordered the release of the accused who had undergone a part of his

imprisonment, giving him benefit of Section 3 the Act and may not be

adversely affected by the disqualification attached with imprisonment.

The Court directed the accused to appear before the Sub-Divisional

Magistrate of Neelagirima and receive the probation order within six

weeks.

In the case of Harish Chand v. Director, Education Deptt.52, the

Supreme Court reiterated that where a public servant is convicted for

any offence under the Indian Penal Code, he may be removed from

service on the basis of his conviction for the offence despite his being

released on probation under Section 4 of the Probation of Offenders Act.

The reason being that Section 12 of the Act obliterates the

disqualification of the public servant attaching to his conviction but it

does not confer him immunity from departmental proceedings against

him.

50

1990 Cr.L.J. 103(SC). 51

1993 Cr.L.J. 544(SC). 52

A.I.R. 1998 SC 788.

(355)

The High Court of Allahabad in Mahak Singh v. State of Uttar

Pradesh53, observed that where the petitioner has been released on

probation under the Probation of Offenders Act, 1958, five years before

elections to the State Assembly, he shall not be disqualified from

contesting the election in view of the provision contained in Section 12 of

the Act.

In Shivnath Ram v. State of Bihar, the High Court of Patna54

held that dismissal from service based on conviction, in criminal case is

not a 'disqualification' within the meaning of Section 12 of the Probation

of Offenders Act, 1958.

8.8 Summary

Like probation, parole is also a reformative technique adopted for

rehabilitation of prisoners. Though apparently the two terms appear to

be similar but between there is basic difference between the two, which

are as follows:

• Probation is a judicial function whereas parole is a quasi-judicial

function. In other words it is for hte Judicial Magistrate/Judge to

release the offender on probation whereas the decision as to

release of a person is taken by the Parole Board which is not a

judicial body.

• There is no stigma or disqualification attached to a person released

on probation but parole carries stigma or disqualification of being

a convicted person.

• Probation is a pre-conviction process whereas parole is a post-

conviction technique.

53

A.I.R. 1999 All 274. 54

1995 Cri.L.J. 3522 (Pat.).

(356)

• A probationer is considered as if undergoing a 'reformatory

treatment' but a parole is considered to be in custody undergoing

both treatment and punishment.

• Probation is merely suspension of sentence and is granted as a

substitute for punishment whereas parole is granted to prisoner

who are already undergoing imprisonment if they show propensity

for good behaviour.

• As pointed out by J.L. gillin, probation is the first stage of

corectional scheme, the parole being the last stage of it.

• Historically also parole came into existence must later than that of

probation. The system of probation was originated by John,

Augustus around 1841 whereas parole came into existence

somewhere in 1940s.

It is proposed to empower Courts to release an offender after

admonition in respect of certain specified offences. It is also proposed to

empower Courts 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. In respect of offenders under 21 years of

age, special provision has made putting restrictions on their

imprisonment. During the period of probation, offenders will remain

under the supervision of probation officers in order that they may be

reformed and become useful members of society.

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