Karnataka High Court
The State Of Karnataka vs Neelakantagouda S/O Ninganagouda ... on 17 February, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
-1-
CRL.RP No. 100112 of 2015
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 100112 OF 2015
BETWEEN:
THE STATE OF KARNATAKA,
REPRESENTED BY SUB-INSPECTOR
OF POLICE, SHIGGAON POLICE
STATION, THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
OFFICE OF THE ADVOCATE
GENERAL, HIGH COURT
BUILDING, DHARWAD.
...PETITIONER
(BY SRI RAMESH CHIGARI, HCGP.)
AND:
NEELAKANTAGOUDA S/O NINGANAGOUDA PATIL,
AGE: 48 YEARS, OCC: COOLIE,
R/O. HANAMARAHALLI, TQ: SHIGGAON,
Digitally signed
by SUJATA
SUBHASH DIST: HAVERI.
PAMMAR
Location: HIGH
COURT OF
KARNATAKA
DHARWAD ...RESPONDENT
(BY SRI VASANT G. HOLEYANNAVAR, ADVOCATE.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(3) READ WITH SECTION 401 OF THE CODE OF
CRIMINAL PROCEDURE, 1973, SEEKING TO ALLOW THIS CRIMINAL
REVISION PETITION AND SET ASIDE THE JUDGEMENT AND ORDER
PASSED BY THE LEARNED PRINCIPAL DISTRICT AND SESSIONS
JUDGE, HAVERI, SO FOR IT RELATES TO RELEASING THE ACCUSED
ON PROBATION OF GOOD CONDUCT, IN CRIMINAL APPEAL
NO.28/2013 AND RESTORE THE ORDER DATED 01.03.2013, PASSED
BY THE JMFC, SHIGGAON, IN C.C.NO.20/2005 ETC.,.
-2-
CRL.RP No. 100112 of 2015
THIS PETITION COMING ON FOR FINAL HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the State being aggrieved by the order dated 29.01.2015, passed by the learned Prl. District and Sessions Judge, Haveri, in Crl.A.No.28/2013, whereby learned Sessions Judge has modified the sentence portion of the judgment of conviction and order of sentence dated 01.03.2013, passed by the JMFC, Shiggaon, in C.C.No.20/2005, pertaining to the offence under sections 409, 477(A) of IPC.
2. The records disclose that the accused- respondent was convicted by the trial Court for the offence punishable under section 409, 477(A) of IPC, by imposing simple imprisonment for a period of two years with a fine of Rs.2,500/- for the offence punishable under section 409 of IPC and simple imprisonment for a period of one year with fine of Rs.2,500/- for the offence punishable under -3- CRL.RP No. 100112 of 2015 section 477(A) of IPC. The learned Magistrate has also passed a default sentence and directed that both the sentences shall run concurrently.
3. Against the judgment of conviction and order of sentence, the respondent herein filed an appeal before the learned Sessions Judge, Haveri, in Crl.A.No.28/2013 and the learned Sessions Judge by judgment dated 29.01.2015, confirmed the conviction order but extended the benefit under section 360 of Cr.P.C. to the accused for execution of the bond for good behavior, but simultaneously additional fine came to be imposed to the extent of Rs.3,000/-. This order is being challenged by the State before this Court.
4. Heard the learned HCGP for the revision petitioner State and the learned counsel appearing for the respondent.
5. The learned counsel for revision petitioner i.e., the HCGP would contend that the provisions of section 360 -4- CRL.RP No. 100112 of 2015 of Cr.P.C. are not applicable to the State of Karnataka. He would also contend that even if the provisions of section 360 of Cr.P.C. are made applicable, in that event since the offence is punishable with more than 10 years, the provisions of section 360 of Cr.P.C. cannot be made applicable. He would also bring to the notice of the Court that even otherwise learned Sessions Judge has proceeded to impose additional fine of Rs.3,000/- with default sentence which is erroneous and either he could have extended the benefit under the provisions of section 360 of Cr.P.C. or the Probation of Offenders Act, or he would have proceeded to impose the sentence. But he adopted both the procedures which is against the settled principles of law.
6. Per contra, the learned counsel for the respondent would contend that though the Probation of Offenders Act is made applicable to the State of Karnataka, there is no specific bar under section 360 of Cr.P.C. for extending the benefit. In support of his -5- CRL.RP No. 100112 of 2015 contention he placed reliance on a decision of the Apex Court reported in (2021) 6 SCC 100 in the case of Lakhanlal Alias Lakhan Singh vs. State of Madhya Pradesh. Further, he has also placed reliance on number of citations and contended that this Court has got ample power to remit the sentence of imprisonment by converting it to fine. He has also produced the document to show that in 2016 itself he has paid the entire misappropriated amount.
7. Having heard the arguments and perusing the records, it is evident that as regards the conviction order is concerned, there is no dispute and the conviction order for the offence punishable under section 409 and 477(A) of IPC was confirmed by the First Appellate Court, which is not challenged and it has reached finality. Only now the dispute is regarding sentence portion.
8. The First Appellate Court has extended the benefit under section 360 of Cr.P.C. to the accused by enlarging him on probation of good conduct. In order to -6- CRL.RP No. 100112 of 2015 ascertain the factual aspects, it is necessary to extract the operative portion of the order passed by the learned Sessions Judge, which reads as under:
ORDER Appeal allowed in part.
The judgment of conviction passed by the Court below in C.C.NO.20/2005 dtd.1.3.2013 is hereby maintained.
The order of Court below sentencing the accused for the offences under sections 409 and 477-A of IPC for a period of two years and one year simple imprisonment respectively is hereby set aside.
By acting under the provisions of section 360 Cr.P.C., accused-appellant is directed to execute bond in a sum of Rs.50,000/- with one surety for likesum as to his good behavior in the society, which shall be in force for a period of two years, on and from the date of execution of bond in the Court below to its satisfaction.
Appellant is directed to execute bond on or before 9.2.2015 to the satisfaction of the Court below.
Further accused-appellant is ordered to pay additional fine of Rs.3,000/- before trial Court within 10 days here from (in all Rs.8,000) less Rs.5,000/- already deposited.
Trial Court is further directed that, out of fine amount recovered, a sum of Rs.3,000/- shall be paid to the Milk Production Co- -7- CRL.RP No. 100112 of 2015 Operative Society, Hanamarahalli as compensation under section 357 of Cr.P.C.
In default of payment of fine of Rs.3,000/- by the accused-appellant within 10 days, he shall undergo simple imprisonment for a period of 6 months.
In all other aspects impugned judgment stands unaltered.
Ordered accordingly.
Office is directed to return the trial Court records forthwith.
9. It is evident that the learned Sessions Judge has given the benefit under section 360 of Cr.P.C. as well as imposed fine. The learned HCGP would contend that since the provision of Probation of Offenders Act are made applicable to the State of Karnataka, the provisions of section 360 of Cr.P.C. cannot be invoked. But, however this point is clarified by the Hon'ble Apex Court in Lakhanlal's case (supra). As such, extending the benefit under section 360 of Cr.P.C. cannot be now gone into. However the learned Sessions Judge after extending the -8- CRL.RP No. 100112 of 2015 benefit under section 360 of Cr.P.C., again proceeded to impose additional fine of Rs.3,000/- with default sentence.
10. If the learned Sessions Judge is inclined to extend the benefit under section 360 of Cr.P.C., he would not have proceeded to impose additional fine with default clause. In case of invoking the provisions of either Probation of Offenders Act or section 360 of Cr.P.C., the sentence will be postponed for a particular period and in case of violation of any bond conditions, the accused will be again summoned to undergo the sentence that is to be imposed. But in the instant case the sentence was also imposed as well as benefit under section 360 of Cr.P.C. was also given, which is erroneous. It is also necessary to consider the provisions of section 360 of Cr.P.C. which reads as under:
360. Order to release on probation of good conduct or after admonition.--(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person -9- CRL.RP No. 100112 of 2015 under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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 where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).
(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-
section (1), such Magistrate may thereupon
- 10 -
CRL.RP No. 100112 of 2015pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.
(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860) punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.
(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set
- 11 -
CRL.RP No. 100112 of 2015aside such order, and in lieu thereof pass sentence on such offender according to law:
Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.
(6) The provisions of sections 121, 124 and 373 shall, so far as may be apply in the case of sureties offered in pursuance of the provisions of this section.
(7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.
(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.
(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a
- 12 -CRL.RP No. 100112 of 2015
sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.
(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.
11. Sub-clause (1) specify that the provisions of section 360 of Cr.P.C. can be exercised only in respect of a person who is convicted for an offence punishable with fine alone or which is punishable for a term up to seven years or less. Admittedly in the instant case the offence under section 409 of IPC is punishable with imprisonment for life or imprisonment up to 10 years, with fine. Further, section 477(A) of IPC is punishable with imprisonment for seven years or fine or with both. As regards 477(A) of IPC, the provisions of section 360 of Cr.P.C. could be invoked. But as regards section 409 of IPC, since the sentence is extending up to 10 years, the provisions of section 360 of Cr.P.C. cannot be invoked. This is completely contrary to
- 13 -
CRL.RP No. 100112 of 2015the provisions of section 3 and 4 of the P.O.Act, but since accused was not extended the benefit of the provisions of section 3 and 4 of the P.O.Act, it cannot be considered now.
12. Hence, considering the statutory bar for extending the benefit of section 360 of Cr.P.C., for an offence punishable under section 409 of IPC, in view of the statutory imprisonment being more than 10 years, the learned Sessions Judge has erred in extending the benefit of section 360 of Cr.P.C. to the accused.
13. Learned counsel for respondent would submit that period of custody of accused may be set off by enhancing the fine to some extent. In support of his contention he has placed reliance on the decision of the Hon'ble Apex Court reported in AIR 1992 SC 2152, in the case of Jayadev Shrichand Danani vs. State of Gujarat. He has also placed reliance on a decision reported in AIR 1974 SC 2336, in the case of Ved Prakash Handooja vs. Delhi Administration.
- 14 -
CRL.RP No. 100112 of 2015
14. He further placed reliance on the decision of an unreported petition of the Apex Court in Crl.A.No.1166/2014 arising out of Special Leave Petition (Crl.) No.84/2013, an unreported decision of this Court in Crl.R.P.No.2219/2022 dated 23.06.2022, an unreported decision of this Court in Crl.A.No.1163/1998 dated 19.02.2010 and an unreported decision of this Court in Crl.R.P.No.699/2006 dated 08.04.2010.
15. On a perusal of these citations, it is evident that if the misappropriated amount is deposited, and since the sentence of imprisonment is also mandatory, the Apex Court and this Court have imposed the sentence till rising of the Court. In the instant case also, the accused- respondent herein is already in custody for three days. It is an admitted fact that the misappropriated amount of Rs.15,095/- is already deposited on 25.03.2016 itself which is not seriously disputed by the prosecution. In view of the deposit of misappropriated amount and in view of
- 15 -
CRL.RP No. 100112 of 2015the inordinate time taken in prosecuting these matters, in my considered opinion, the submission of the learned counsel for respondent/accused can be considered while setting aside the impugned order passed by the learned Sessions Judge regarding extending the benefit of provisions of section 360 of Cr.P.C. As such, the revision petition needs to be allowed and accordingly I proceed to pass the following:
ORDER
i) The revision petition filed by the State is allowed.
ii) The impugned order dated 29.01.2015, passed by the learned Prl. District and Sessions Judge, Haveri, in Crl.A.No.28/2013, so far as it relates to extending the benefit of provisions of section 360 of Cr.P.C. to accused-
respondent herein is set aside.
- 16 -
CRL.RP No. 100112 of 2015
iii) The accused-respondent is sentenced to undergo imprisonment for a period of which he has already undergone in custody with a fine of Rs.10,000/- for both the offences which would serve the purpose.
iv) Accordingly, the revision petition stands disposed of.
v) Send back the records to the concerned Courts along with a copy of this judgment with a direction to the trial Court to secure the presence of accused-respondent and collect the fine, in default, he is directed to undergo simple imprisonment for a period of three months.
Sd/-
JUDGE MRK List No.: 1 Sl No.: 19