Punjab-Haryana High Court
Asfak vs State Of Haryana on 30 August, 2012
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
CRR No.1976 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Revision No.1976 of 2012 (O&M)
Date of Decision: August 30, 2012.
Asfak
..........PETITIONER(s).
VERSUS
State of Haryana
..........RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE RAM CHAND GUPTA
Present: Mr. Rajesh Lamba, Advocate
for the petitioner.
Ms. Maloo Chahal, D.A.G. Haryana,
counsel for respondent-State.
*******
RAM CHAND GUPTA, J.(Oral)
CRM No.39625 of 2012.
Application is allowed subject to all just exceptions. CRM No.39624 of 2012.
Heard.
Keeping in view the facts and circumstances mentioned in the application, the same is allowed and the delay of 11 days in filing the revision petition is, hereby, condoned.
CRR No.1976 of 2012 -2-
Criminal misc. application stands disposed of.
Crl. Revision No.1976 of 2012.
The present revision petition has been filed against the judgment dated 30.3.2012 passed by learned Additional Sessions Judge, Faridabad dismissing appeal filed by the present petitioner against the judgment of conviction dated 3.5.2011 and order of sentence dated 4.5.2011 passed in Criminal Case No.133/2 dated 25.2.2011 in FIR No.31 dated 29.02.2008 under Section 25 of the Arms Act, 1959, (for short 'the Act') registered at Police Station Ballabgarh.
I have heard learned counsel for the parties and have gone through the whole record.
Briefly stated, petitioner faced trial for offence under Section 25 of the Act before Judicial Magistrate 1st Class, Faridabad on the allegation that on 29.02.2008 police party intercepted him and on suspicion, he was searched and it was found that he was having a country-made pistol of .315 bore in right pocket of his pants. As accused could not produce any licence or permit for keeping the said pistol, the same was taken into police possession and the FIR was registered against the present petitioner.
After completion of investigation, report under Section 173 of the Code of Criminal Procedure (for short 'Cr.P.C.) was filed. Petitioner was charge-sheeted for the offence under Section 25 of the Act, to which he did not plead guilty and claimed trial.
Evidence of the prosecution was recorded. Statement of CRR No.1976 of 2012 -3- petitioner-accused under Section 313 Cr.P.C. was recorded. He was held guilty and convicted vide judgment dated 3.5.2011 passed by learned trial Court and sentenced vide order dated 4.5.2011.
Aggrieved against the said judgment and order, petitioner- accused preferred an appeal before learned first Appellate Court, which was also dismissed vide order dated 30.03.2012.
It has been contended by learned counsel for the petitioner that he does not want to press the present revision petition so far as the judgment of conviction passed by learned trial Court and as affirmed by learned first Appellate Court is concerned.
I have also perused both the judgments. The same are based on evidence. Every aspect of the case has been discussed. Hence, it cannot be said that any illegality or material irregularity has been committed by Courts below in convicting the petitioner under Section 25 of the Act.
However, it has been contended by learned counsel for the petitioner-accused that maximum sentence provided for the offence under Section 25 of the Act is three years and he has been sentenced to undergo rigorous imprisonment for one year. Further submitted that however, he could have been released on probation under Section 4 of the Probation of Offenders Act, 1958 and the said benefit can be refused to present petitioner-accused only if there are special reasons for doing so as has been provided under Section 361 Cr.P.C. It is further submitted that however, without assigning any reason, the said benefit has been denied to the present CRR No.1976 of 2012 -4- petitioner-accused. It has also been contended that petitioner has already undergone more than five months of the sentence during trial and after conviction.
Learned counsel for the respondent-State has not disputed the fact that petitioner has already undergone five months and 15 days of the sentence. She has also placed on record custody certificate of the petitioner- accused. The same is taken on record.
It may be mentioned here that though minimum sentence prescribed is one year for the offence committed under Section 25 of the Act, however, in view of ratio of law laid down by Full Bench of this Court in Joginder Singh Versus State of Punjab1980 PLR 585 mere prescription of minimum sentence for a particular offence is no bar to the applicability of Section 360 and 361 Cr.P.C.
On similar facts, for the offence under Section 25 of the Act, this Court had been providing benefit of probation under Section 4 of the Probation of Offenders Act, 1958 to the accused. On the point, reference can be made of Raja Ram Versus State of Haryana Crl. Revision No.488 of 2011 decided on 20.05.2011; Gurmail Singh @ Gela Singh Versus State of Punjab Crl. Revision No.671 of 1995 decided on 22.11.2007; Davinder Singh Versus State of Punjab Crl. Revision No.2009 of 2002 decided on 12.11.2010; and Sukhdev Singh alias Babbu Versus State of Punjab Crl. Revision No.3070 of 2010 decided on 14.01.2011.
Hence, in view of the same, the present revision petition is CRR No.1976 of 2012 -5- partly accepted. Judgment of conviction passed by learned trial Court and as affirmed by learned first Appellate Court against the present petitioner- accused is hereby affirmed.
However, as far as question of sentence is concerned, there is force in the argument of learned counsel for the petitioner that no special reasons have been given by the Courts below for declining benefit of probation to the petitioner as enshrined under Section 361 of Cr.P.C. It is mandatory for the trial Court to give special reasons for withholding such benefit in view of provisions enshrined in Section 361 of Cr.P.C.
In this case, petitioner is not previous convict and having small children and old parents to look after.
Hence, I deem it a fit case in which the benefit of probation should be granted to the petitioner-accused. The order of sentence as passed by learned Courts below is set aside. Petitioner is directed to be released on probation of good conduct for a period of one year to the satisfaction of the learned trial Court at Faridabad. During this period, he will keep peace and be of good behaviour and call upon to receive sentence in case of violation of any condition of probation bond. He is also directed to deposit `10,000 as costs of litigation.
Disposed of accordingly.
( RAM CHAND GUPTA )
August 30, 2012 JUDGE
Sachin M.