Gujarat High Court
Manoj A. Chhara vs State Of Gujarat on 5 August, 1992
Equivalent citations: (1993)1GLR586
JUDGMENT A.N. Divecha, J.
1. The order of sentence passed by the learned Chief Judicial Magistrate of Valsad at Navsari on 15th April, 1988 in Criminal Case No. 1881 of 1988 as affirmed in appeal by the learned Sessions Judge of Valsad at Navsari on 2nd September, 1989 by his decision in Criminal Appeal No. 12 of 1988 is under challenge in this revisional application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973 (the 'Cr.P.C.' for brief).
2. The facts giving rise to this revisional application are not many and not much in dispute. The petitioner herein was charged with having removed silver strips weighing 2 1/2 Kgs. from the shop of the original complainant. On completion of investigation, a charge-sheet was submitted against the present petitioner in the Court of the Chief Judicial Magistrate of Valsad at Navsari. It came to be registered as Criminal Case No. 1881 of 1988. The present petitioner as the accused pleaded guilty to the charge. It was reported to the Court that he was aged 20 years at that time and he should therefore be given benefits of probation. The learned trial Magistrate thereupon called for the report of the Probation Officer. After making the necessary enquiry, the Probation Officer submitted his report. It was found adverse to the petitioner herein. On perusal of the report and after hearing the parties, by his judgment and order passed on 15th April, 1988, the learned Chief Judicial Magistrate of Valsad at Navsari was pleased to sentence the present petitioner to rigorous imprisonment for two years and to a tine of Rs. 500 and in default thereof rigorous imprisonment for ore mere month. It is needless to say that the learned trial Magistrate -was pleased to convict the accused of the offence punishable under Section 380 of the Indian Penal Code, 1860 (the 'I. P. C.' for brief). Aggrieved thereby, the present petitioner carried the matter in appeal before the Sessions Court of Valsad at Navsari. His appeal came to be registered as Criminal Appeal No. 12 of 1988. After hearing the parties, by his judgment and order passed on 2nd September, 1989 in Criminal Appeal No. 12 of 1988, the learned Sessions Judge of Valsad at Navsari was pleased to dismiss the appeal. Aggrieved thereby, the petitioner has invoked the revisional jurisdiction of this Court for questioning the correctness of the order of sentence passed by the Courts below.
3. Shri Chhara for the petitioner has submitted that the previous convictions of the present petitioner as referred to by the Probation Officer in his report have not come to be proved, and as such the Courts below were in error in relying on the previous convictions of the present petitioner referred to in the report of the Probation Officer for the purpose of denying to the present petitioner benefits of probation. Shri Chhara has further urged that the trial Court was in error in not complying with the relevant provisions contained in Section 7 of the Probation of Offenders Act, 1958 (the 'P. 0. Act' for brief) by not communicating in writing to the present petitioner the substance of the report of the Probation Officer. According to Shri Chhara for the petitioner, non-communication of the substance of the report of the Probation Officer to the present petitioner has deprived him of his valuable right to meet with the case put up by the Probation Officer against him.
4. It is not in dispute that the Probation Officer has referred to the two previous convictions of the present petitioner in his report for the purpose of denying benefits of probation to the present petitioner. It transpires from the judgment and order of the trial Court that no representation against the report of the Probation Officer was made on behalf of the present petitioner, that is, the accused at the relevant time. There is a clear-cut statement in the judgment and order of the trial Court that the accused has not challenged the contents of the report of the Probation Officer more particularly with respect to his previous convictions. This statement in the judgment and order of the trial Court has to be accepted as its correctness is not shown to have been challenged before the lower appellate Court. In that view of the matter, line is no hesitation in coming to the conclusion that the present petitioner admitted the contents of the report of the Probation Officer without any demur of reservation.
5. It is true, as rightly submitted by Shri Chhara for the petitioner, that the previous conviction has to be preyed as provided in Section 298 of the Cr. P. C. It may be mentioned at this stage that Section 58 of the Indian Evidence Act, 1872 (the 'Evidence Act' for brief) provides for dispensation of the proof of a fact which is admitted. As aforesaid, the present petitioner could be said to have admitted the contents of the report of the Probation Officer as transpiring from the judgment and order of the learned trial Magistrate. In that view of the matter, it was not necessary to prove the contents of the report of the Probation Officer more particularly when it was not challenged by or on behalf of the present petitioner at trial.
6. I am supported in my view by the ruling of the Madras High Court in the case of In re. Wohid v. The Crown reported in 50 Cri.LJ 729. In that case also the accused had admitted his previous convictions and as such Section 511 of the old Criminal Procedure Code, 1898 was not allowed to be pressed into service for proof of the previous convictions. It may be mentioned at this stage that Section 511 of the old Criminal Procedure Code is found re-enacted in Section 298 of the new Criminal Procedure Code, 1973. The aforesaid ruling of the Madras High Court in the case of In re Wahid (supra) supports the view that is taken by me in this case.
7. The ruling of this Court in the case of Hira Basiya v. State of Gujarat reported in (1963) IV GLR 720 as relied on by Shri Chhara for the petitioner is not of much help to the petitioner in the present case. It has been held therein that a previous conviction must be proved either in the manner stated in the Evidence Act or in Section 511 of the old Criminal Procedure Cede. It thus becomes clear that the previous conviction of the accused can as well be proved under the relevant provisions contained in the Evidence Act. As pointed cut hereinabove, Section 58 of the Evidence Act disperses with the proof of an admitted feet. It is needless to repeat or to reiterate that the petitioner did ret challenge the contents of the report of the Probation Officer and thereby admitted it, and as 'such the proof of the previous convictions mentioned therein was rightly not insisted on at trial.
8. The ruling of the Lahore High Court in the case of Sardar Ahmad v. Emperor reported in 36 Cri.LJ 778 as relied on by Shri Chhara for the petitioner is of no help to the petitioner in the present case for the simple reason that it has stated the law much wider than what is stated by this Court in. its ruling in the case of Hira Basiya (supra). The ruling of this Court though by a single Judge is obviously binding to me sitting as a single Judge. I will have to follow it in preference to the ruling of any other High Court which has merely a persuasive value. Besides, as pointed out hereinabove, the ruling of the Madras High Court in the case of In re Wahid (supra) supports the view taken by this Court in its ruling in the case of Hira Basiya (supra) and by me in the present case.
9. In view of my aforesaid discussion, I think the Courts below were not in error in relying on the previous convictions referred to by the Probation Officer in his report.
10. Shri Chhara for the petitioner has then urged that the trial Court was in error in not complying with the relevant provisions contained in Section 7 of the P. 0. Act which has resulted in denial and deprivation of the opportunity to the present petitioner to meet with the adverse report of the Probation Officer. According to Shri Chhara for the petitioner, Section 7 of the P. 0. Act requires communication of the said report to the accused in writing.
11. It would be quite necessary to refer to the relevant provisions contained in Section 7 of the P.O. Act. It reads:
Report of Probation Officer to be confidential:
The report of a Probation Officer referred to in Sub-section (2) of Section 4 or Sub-scetion (2) of Section 6 shall be treated as confidential:
Provided that the Court may, if it so thinks fit, communicate the substance thereof to the offender and may give him an opportunity of producing such evidence as may be relevant to the matter stated in the report.
A bare perusal of the aforesaid statutory provision shows that the report of the Probation Officer is made a confidential document. It is not to be made public. It is not to be perused by any other person. The report from the Probation officer is called for by the Court to assist it in deciding the question of the quantum of punishment to be given to the accused Rind guilty of the charge levelled against him at trial. It is certainly not for the benefit of the accused. Again, proviso to Section 7 of the P. 0. Act gives discretion to the Court to communicate the substance thereof to the offender if it to thinks fit. This would make it clear that it is not always necessary to communicate the contents of the report to the accused. It is true that the accused has to be given an opportunity of producing such evidence as may be relesent to the matter stated in the report. To that extent, it might be necessary for the Court to communicate its substance to the accused if it is adverse to him. In order not to do away with its confidentiality, such communication need not be in writing. It can be put to the accused orally. It is needless to say that a written communication of even the substance of the report would militate against its confidentiality required to be maintained in view of Section 7 of the P. 0. Act. I am, therefore, unable to accept the submission urged before me by Shri Chhara for the petitioner to the effect that communication of the substance of the adverse report to the accused should be in writing.
12. In the instant case, I am not prepared to believe that there was no communication of the adverse report of the Probation Officer to the present petitioner. As pointed out hereinabove, the learned trial Magistrate has, in his impugned judgment and order, observed in no uncertain terms that there was no representation from the accused against the report of the Probation Officer and that the accused did not challenge the contents thereof more particularly those regarding his previous convictions. These clear-cut observations in the judgment and order of (he trial Court would leave no room for doubt that the substance of the report of the Probation Officer was communicated to the present petitioner at the relevant time.
13. Shri Chhara for the petitioner has then urged that some leniency deserves to be shown to the present petitioner in view of his tender age at the time of commission of the offence and also in view of the fact that he pleaded guilty to the charge. I am sure that when he pleaded guilty to the charge it was not a plea-bargain. He appears to have pleaded guilty to the charge to claim benefits of probation under the P. 0. Act. Unfortunately for him, the Probation Officer after making necessary enquiries, submitted his report adverse to the present petitioner. The offence under Section 380 of the I. P. C. is punishable with imprisonment upto 7 years. I think the learned trial Magistrate has shown sufficient leniency by awarding the sentence of imprisonment for 2 years only. I think no further leniency is required to be shown to the petitioner in the present case.
In the result, this revisional application fails. It is hereby rejected. The petitioner is directed to surrender to custody to serve his sentence within four weeks from today. Rule is accordingly discharged.