Karnataka High Court
H.K. Ravikumar vs State Of Karnataka on 12 November, 2021
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRL.RP NO.15 OF 2013
BETWEEN:
H.K.RAVIKUMAR @ RAVI
S/O KEMPAIAH
AGED ABOUT 26 YEARS
R/O HARIJANA COLONY
HEGGERE, TUMKUR TALUK ... PETITIONER
(BY SRI. A.N.RADHAKRISHNA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY TOWN POLICE
TUMKUR, REP. BY
THE STATE PUBLIC
PROSECUTOR, HIGH COURT
BUILDING, BANGALORE ...RESPONDENT
(BY SRI. V.S.VINAYAKA, HCGP)
THIS CRL.RP IS FILED UNDER SECTIONS 397 AND 401 OF
CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE DATED 04.11.2011
PASSED BY THE PRL.C.J.M., TUMKUR IN C.C.NO.1686/2010 AND
CONFIRM THE ORDER DATED 10.10.2012 PASSED BY THE
PRL.S.J., TUMKUR IN CRL.A.NO.104/2011.
THIS CRL.RP COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
Heard Sri A.N.Radha Krishna, learned counsel for the revision petitioner and Sri V.S.Vinayaka, learned HCGP for the respondent and perused the records.
2. This revision petition is filed against the judgment of conviction and order of sentence dated 04.11.2011 passed in CC No.1686/2010 whereby the accused has been convicted for the offence punishable under Section 380 of IPC and ordered to undergo rigorous imprisonment for a period of four years and to pay fine of Rs.4,000/- with default sentence of simple imprisonment for six months which was modified by judgment dated 10.10.2012 by the First Appellate Court in Crl.A.No.104/2011 whereby the judgment of conviction was maintained and the sentence was reduced to three and half years simple imprisonment and fine with a default sentence of two months simple imprisonment.
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3. The brief facts of the case are as under:
The revision petitioner faced trial in CC No.1686/2010 for the offence punishable under Section 380 of IPC. The basis of the charge sheet was that the accused has stolen away a Video Camera worth Rs.45,000/- on the intervening night of 03.06.2010 and
04.06.2010 in Chilume Samudaya Bhavana situated at Bar Line, Tumkur. As the accused pleaded not guilty trial was held. In order to prove the case, prosecution examined seven witnesses as PWs.1 to 7 and relied on nine documentary evidence which were exhibited and marked as Exs.P1 to P9 and material objects such as M.Os. 1 and 2 which are the video camera and kit.
4. After conclusion of the prosecution evidence, the statement of the accused as contemplated under Section 313 of Cr.P.C. was recorded wherein the accused has denied all the incriminatory materials. The accused did not chose to offer his version to the case and the learned Magistrate after appreciating the material 4 evidence on record passed the judgment of conviction and order of sentence of four years rigorous imprisonment with a fine of Rs.4,000/- with default sentence.
5. Being aggrieved by the same, the accused preferred an appeal in Crl.A.No.104/2011 on the file of the Principal Sessions Judge, Tumkur. The learned Judge of the First Appellate Court by its judgment dated 10.10.2012 confirmed the judgment of conviction passed by the learned Magistrate but modified the order of sentence to three and half years simple imprisonment instead of four years rigorous imprisonment. Being aggrieved by the same, the accused is in revision.
6. Learned counsel for the revision petitioner vehemently contended that both the courts have wrongly convicted the accused by not appreciating the material evidence on record. He further contended that there is no clinching evidence on record to show that the 5 video camera was in fact seized from the custody of the accused inasmuch as the recovery mahazar has not been properly proved in accordance with law. He further contended that based on suspicion, the accused has been convicted and therefore, the judgments of both the courts have resulted in miscarriage of justice and sought for allowing the revision petition.
7. Alternatively, he contended that the accused is a first time offender and the offence under Section 380 of IPC is amenable for grant of probation. The trial court as well as the First Appellate Court was required to order for probation to the accused and thus prayed for allowing the revision petition.
8. Per contra, the learned HCGP for the respondent vehemently contended that both the courts have rightly convicted the accused. The police could not have implanted a valuable video camera only with an intention to convict the accused in the case, more so, in the absence of any previous enmity or animosity 6 possessed by the investigating agency against the accused and the same has been properly appreciated by both the courts in recording the judgment of conviction.
9. Alternatively, the learned HCGP for the respondent contended that since the accused has been convicted for the offence punishable under Section 380 of IPC on the video camera worth Rs.45,000/- which has been seized by the police from the custody of the accused, the accused is not entitled for grant of probation. He further contended that if this Court is required to grant probation, a report from the Probation Officer is necessary.
10. In view of the rival contentions and the scope of revisional jurisdiction, the following points would arise for consideration:
(i) Whether the finding recorded by the learned Magistrate that the accused is guilty of the offence punishable under Section 380 of IPC which is confirmed by the First Appellate Court is suffering 7 from legal infirmity, perversity or error of jurisdiction and thus calls for interference?
(ii) Whether the sentence is excessive?
11. In the case on hand, the entire case of the prosecution hinges on the recovery of M.O.1 from the custody of the accused. No doubt some discrepancies are found in the recovery mahazar. However, there is sufficient force in the argument put forth on behalf of the State that in the absence of any previous enmity or animosity possessed by the Investigating Agency against the accused, why would the Investigating Agency implant a video camera worth Rs.45,000/- in the accused. The said aspect of the matter has been properly appreciated by the learned Magistrate and the fact of theft of M.O.1 from Chiluma Samudaya Bhavana on the intervening night of 03.06.2010 and 04.06.2010 stands established by placing necessary oral and documentary evidence on record. In a matter of this nature, the prosecution is unable to get any positive 8 evidence so as to hold that the accused is not the person who has actually thieved M.O.1.
12. In proving the offence under Section 380 of IPC, it is always necessary for the Courts to look forward for the corroborative evidence in pursuance of the complaint. In such cases, recovery of the stolen article from the custody of the accused assumes a great importance. In the case on hand, but for the minor discrepancies in respect of recovery mahazar, the prosecution is successful in proving that the stolen article is seized from the custody of the accused. Therefore, this Court has no hesitation in holding that the finding recorded by the learned Magistrate that the accused is guilty of the offence punishable under Section 380 of IPC which is affirmed by the First Appellate Court is based on sound and logical reasons and therefore requires no interference and point no.1 is answered in the negative.
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13. Insofar as sentence is concerned, the learned Magistrate did not even consider the grant of probation as the accused was a first time offender and there was no criminal intent for the accused. In this regard, this Court gainfully places reliance on the legal principles enunciated by the Hon'ble Apex Court in Chand Sharma (2000)9 SCC 245 and Gulzar vs. State of M.P. Gulzar [(2007)1 SCC 619]. The relevant portions of the said judgments are extracted hereunder:
"12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven 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 the P.O. Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while the P.O. Act does make such a provision. While Section 12 of the P.O. Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the P.O. Act shall not suffer disqualification, if any, attached to 10 conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co- existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the P.O. Act, as applicable at the same time in a given area, cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable."
3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable. Pursuant to the said notice, Mr. Singh, the learned standing counsel 11 for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of the Code of Criminal Procedure. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the Code of Criminal Procedure. As such, the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case, we see no reason not to apply the provisions of Section 360 of the Code of Criminal Procedure. We accordingly, while maintaining the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly.
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14. Applying the legal principles enunciated in the said judgments to the case on hand, the learned Magistrate was duty bound to consider the grant of probation to the revision petitioner. Unfortunately, the First Appellate Court did not bestow its attention on the grant of probation in a proper manner. Accordingly, this Court is of the considered opinion that the revision petitioner who is a first time offender is entitled for grant of probation and if the accused/revision petitioner is directed to execute a bond in a sum of Rs.50,000/- with one surety for the likesum to the satisfaction of the learned Magistrate, which shall be kept in force for a period of two years and if the accused is ordered to pay a fine of Rs.10,000/- as against Rs.4,000/- ordered by the trial court which is affirmed by the First Appellate Court, the ends of justice would be met. Accordingly, point no.2 is answered and the following order is passed:
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ORDER
(i) The revision petition is allowed in part;
(ii) While maintaining the judgment of conviction and the order of sentence passed by the courts below under Section 380 of IPC, the accused/revision petitioner is ordered to pay fine of Rs.10,000/- and also directed to execute a bond for a sum of Rs.50,000/- with one surety for the like-sum to the satisfaction of the learned Magistrate which shall be in force for a period of two years;
(iii) Time is granted till 15.12.2021 to execute the bond and to pay the fine;
(iv) It is made clear that if there is a failure on the part of the accused to execute the bond, the judgment of conviction passed by the learned Magistrate which is affirmed by the First Appellate Court stands revived;
(v) Office is directed to return the trial court records along with copy of this order forthwith.
Sd/-
JUDGE hkh.