Uttarakhand High Court
Jagdish vs The State Of Uttarakhand on 13 July, 2021
Author: R.C. Khulbe
Bench: R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No.145 of 2021
Jagdish ............... Revisionist
Versus
The State of Uttarakhand ...... Respondent
Mr. Rajendra Arya, learned Counsel for the revisionist.
Mr. Deepak Bisht, learned Brief Holder for the State
Hon'ble R.C. Khulbe, J.
Since the revision is time barred, accordingly, delay condonation application (IA/2/2021) has been moved. Notices were issued to the private respondent but despite personal service none appeared on behalf of him. Learned counsel for the State has no objection to the application seeking condonation of delay. Accordingly, delay condonation application is allowed and delay in preferring the present revision is condoned.
2. Heard.
3. Admit.
4. This criminal revision, preferred by the revisionist u/s 397/ 401 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 10.09.2012 passed by learned Judicial Magistrate, Ramnagar, District Nainital in Criminal Case No.1385 of 2011, State Vs. Satnam Singh @ Sonu & Others, whereby the learned trial Court convicted the revisionist under Section 147 IPC and sentenced him to undergo six months' rigorous imprisonment with a fine of Rs.200/- with default stipulation and also convicted U/s 332 IPC and sentenced him to undergo one year's R.I. with a fine of Rs.500/- with default stipulation, as well as against the judgment and order dated 04.08.2017 passed by learned 1st Additional Sessions Judge, Nainital, District- Nainital, in Criminal Appeal No.99 of 2012, Jagdish Vs. State of Uttarakhand, whereby the learned Addl. Sessions 2 Judge affirmed the order passed by the learned trial Court dismissing the appeal preferred by the revisionist.
5. The prosecution story, in brief, is that PW1 Ganesh Dutt Sati submitted an information Ex.Ka-1 with police station Belpadav, Ramnagar. On the basis of the said information, chick FIR was lodged on the very same day with police station Belpadav, Ramnagar. After completion of investigation, charge-sheet Ex.Ka-4 was submitted. Accordingly, after compliance with the provision of Section 207 Cr.P.C., the concerned Magistrate took the cognizance and framed the charge on 12.03.2012 U/s 147, 332, 353 IPC and U/s 26 of the Indian Forest Act. The revisionist denied all the allegations and claimed to be tried.
6. In order to prove its case, the prosecution examined PW1 Ganesh Dutt Sati (informant and injured), PW2 Jagjeevan Ram Arya (eye-witness), PW3 S.I. Ravindra Kumar (I.O.), PW4 Veerpal Singh (witness to the incident) and PW5 Kamala Kant Joshi (injured).
7. After completion of prosecution evidence, statement of revisionist was recorded u/s 313 Cr.P.C. in which he denied all the evidences and stated that the prosecution produced false evidences against him. However, no evidence was produced in defence.
8. After hearing both the parties, learned trial court convicted the revisionist and sentenced him as mentioned above in paragraph no.4 of the judgment.
9. Aggrieved by it, the revisionist filed Criminal Appeal No.99 of 2012, Jagdish Vs. State before the Sessions Judge, Nainital, who ultimately transferred it to the 1st Additional Sessions Judge, Nainital. The learned 1st Additional Sessions Judge, after hearing the parties, dismissed the appeal and affirmed the order dated 10.09.2012 passed by the trial Court. Aggrieved by it, the present criminal revision has been preferred.
310. Learned counsel appearing on behalf of the revisionist fairly argued that the conviction and sentence as awarded by the trial Court U/s 332 is just and proper and the order of the appellate court dated 04.08.2017 is also based on merit. He does not want to argue the revision on merit regarding the conviction U/s 332 IPC but the revisionist cannot be punished U/s 147 IPC.
11. I have also gone through the record and judgment passed by the trial Court as well as the finding in the appeal. As regards to the conviction passed by the Court below U/s 332 is concerned, there is no illegality in the impugned findings and sentence. As regards to the conviction U/s 147 IPC is concerned, the word 'rioting' has been defined U/s 146 IPC and the unlawful assembly has been defined U/s 141 IPC, which are being reproduced as below:-
"146. Rioting.--Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting".
"141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is--
First -- To overawe by criminal force, or show of criminal force, or any public servant in the exercise of the lawful power of such public servant; or Second -- To resist the execution of any law, or of any legal process; or Third -- To commit any mischief or criminal trespass, or other offence; or Fourth -- By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth -- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.4
Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."
12. From the perusal of Section 141 IPC, it is clear that there must be five or more persons for composing the unlawful assembly. Although the FIR was lodged against six persons but charge-sheet was submitted against only four persons. The trial Court has acquitted the other accused except the present revisionist U/s 147 IPC. Since, other accused have been acquitted, hence, this sole revisionist Jagdish cannot be convicted U/s 147 IPC. Accordingly, the present revisionist is liable to acquitted U/s 147 IPC.
13. As regards to the offence U/s 332 IPC is concerned, the learned counsel for the revisionist fairly submitted that the matter relates to the year 2011 and 10 years period has elapsed; the revisionist is a sole bread earner of his family; there is no criminal history of the revisionist, hence, he may be given the benefit of being the first-time offender.
14. Mr. Deepak Bisht, learned Brief Holder appearing for the State, admits that he has not received any report about the criminal antecedents of the revisionist, and admitted that the revisionist is the first- time offender.
15. In this regard, the Hon'ble Apex Court in the case of "Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola" reported in 2001 SCC (Cri.) 2, 897, in paragraph no.7, has held as under:
"7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act."5
16. Section 3 and 4 of the Probation of Offenders Act, 1958 read as under:
"3. Power of court to release certain offenders after admonition - When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code (45 of 1860), or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4 release him after due admonition. Explanation - For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or Section 4."
"4. Power of court to release certain offenders on probation of good conduct
1. When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: "Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if 5 any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.6
2. Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
3. When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.
4. The Court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
5. The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."
17. A bare perusal of Section 3 would demonstrate that if a person is found guilty for the offence punishable under Sections 379 or 380 or 381 or 404 or 420 IPC or for any other offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and such person is found to be first time offender, the Court after due admonition, may direct release of such person on probation of good conduct under Section 4 of the Act. Explanation to Section 3 of the Act would demonstrate that previous release on probation shall be treated as previous conviction. Meaning thereby, if such a person has already been released on probation by giving benefit of probation of first offender Act, at any earlier point of time, he cannot 7 seek release on probation for the subsequent offence in subsequent trial. In other words, benefit of the Probation of Offenders Act, 1958 can be extended to the accused once in a life time, if other conditions of Sections 3 and 4 are available.
18. Section 4 of the Act would demonstrate that if a person is found guilty of having committed an offence not punishable with death or imprisonment for life, in that event, considering the nature of the offence and the character of the offender, the Court, instead of sentencing him at once to any punishment, may release such person on probation of good conduct, on his entering into a bond, with or without sureties, for a period not exceeding three years. Before releasing the offender, on probation, the Court must satisfy itself that offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court while releasing on probation may also direct that accused shall remain under the supervision of Probation Officer for a period not less than one year.
19. A combined reading of Sections 3 and 4 of the Act would reveal that if the offence is punishable for not more than 2 years then release on probation shall be after admonition. However, if offence is punishable for a period more than 2 years but not punishable with death or imprisonment for life, admonition of sentence shall not be required and if person, released on probation, is found involved in any offence during the period of probation or otherwise, is found behaving in violation of condition of bond, he shall be directed to serve out the sentence awarded by the court. In other words, while on probation such person should not involve himself in subsequent 8 offence or must honour the condition of his bond / surety bond and if he breaches the same, he has to serve out the sentence awarded by the Court.
20. In the present case the revisionist is the first- time offender. The incident seems to have taken place 10 years ago; he is the sole bread earner of his family; and, there is no criminal history of the revisionist. Therefore, considering the provisions of the Probation of Offenders Act, 1958, no useful purpose would be served to send the revisionist to jail to serve out the remaining sentence. Rather, in the opinion of the Court, he should be released on probation in order to reform himself.
21. The present revision, thus, stands partly allowed. The revisionist is acquitted U/s 147 IPC as the case is not made out under Section U/s 147 IPC. The conviction part of the revisionist - Jagdish under Section 332 IPC is left intact. However, as far the sentence part is concerned, it is directed that the revisionist Jagdish shall be released on probation for a period of one year on furnishing a personal bond to the satisfaction of the concerned Trial Court with one surety. The concerned Magistrate shall be at liberty to impose such conditions while executing the bond which he feels fit in accordance with the law. It goes without saying that if revisionist fails to observe good conduct and behaviour during probation or is found violating any condition, to be imposed; the Court concerned shall be at liberty to cancel the bonds calling the revisionist to serve out the remaining sentence. The revisionist Jagdish shall appear before the Trial Court on or before 10.08.2021 for compliance.
22. Let a copy of this judgment be sent forthwith to the learned Trial Court for compliance.
(R.C. Khulbe, J.) 13.07.2020 Sukhbant