Uttarakhand High Court
Subhash And Another .....Appellants vs State Of Uttarakhand on 4 April, 2024
Author: Pankaj Purohit
Bench: Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 515 of 2007
Subhash and another .....Appellants
Vs.
State of Uttarakhand .....Respondent
Presence:
Mr. Parikshit Saini, learned counsel for the appellants.
Mr. Bhaskar Chandra Joshi, learned AGA with Mr. J.P. Kandpal,
learned Brief Holder for the State.
Hon'ble Pankaj Purohit, J.
In this appeal preferred by the appellants under Section 374 CrPC, the challenge has been made to the judgment and order dated 04.12.2007, passed by learned FTC/IIIrd Additional Sessions Judge, Haridwar in Sessions Trial No.200 of 1999, State Vs. Subhash and others, whereby the said court at the conclusion of trial has held the appellants-Subhash and Ram Prasad guilty for the offence punishable under Section 323 IPC and sentenced each of them to undergo one year rigorous imprisonment with a fine of ₹5,000/- in default of payment of fine, the defaulter was directed to undergo one month additional simple imprisonment.
2. The appellants were further convicted under Section 504 IPC and sentenced to undergo one year rigorous imprisonment within a fine of ₹5,000/- and in default to undergo one month additional simple imprisonment. Both the sentences were directed to run concurrently.
3. Facts of the case in a nutshell are that an application was lodged by PW1-Dharma in the court of learned Judicial Magistrate, Haridwar with the averments that on 20.05.1996 at about 07:00 PM, accused-Subhash, Ram Prasad, Rampal, Jailpal and Narendra surrounded him on the way and while hurling abuses to him, Subhash threatened that he would let the informant understand the consequences of lodging a case and then all these people began to commit maarpeet with the informant by sticks, batons, fists and slaps.
2The informant could save himself and on the alarm raised by him Jaipal, Prabhudayal and several other people came on the spot, who witnessed the occurrence and saved the applicant. These accused persons while going extended the complainant a threat to kill him in future. On this information the court ordered for registration of the case under Sections 147, 323, 504 and 506 IPC being Crime No.66A/96 against the accused persons, in which the charge sheet was submitted against the accused. The case was committed to the court of Sessions by learned Additional Chief Judicial Magistrate, Haridwar on 01.02.1999. On 17.11.1999 learned Sessions Judge, Haridwar framed charges against the accused persons under Sections 147, 323/149, 504 and 506 IPC to which the accused persons denied charges and claimed to be tried.
4. As many as six witnesses were produced in oral evidence on behalf of the prosecution. They are PW1-Dharma, PW2-Jaipal, PW3-Dr. P.K. Bhatnagar, PW4-SI-Naresh Chandra Jauhari, PW5- SSI-Rajendra Prasad, PW6-Const. Shyam Veer Singh.
5. Thereafter statements of accused were recorded under Section 313 CrPC, in which the accused persons pleaded false implication by denying the occurrence. On behalf of the defence DW1-Subhash, DW2-Ram Prasad and DW3-Smt.Santosh were examined. After examination of entire oral and documentary evidence available on record, the trial court held the appellants guilty as mentioned in para no.1 of this judgment.
6. I have heard learned counsel for the parties at length and have carefully perused the entire documents available on record.
7. Learned counsel for the appellants having argued extensively finally submitted before this Court that the judgment and order passed by the trial court is based on the evidence which is not reliable due to several contradictions and developments during trial. He also argued and submitted alternately that if this Court is not convinced, on the arguments advanced by him, the appellants may be 3 extended the benefit of Probation of Offenders Act, 1958 (hereinafter to be referred to as 'the Act of 1958').
8. To this submission learned State counsel has no serious objection and he also admitted that the appellants can be extended the benefit of first offenders act.
9. It was also argued that the appellants are now running in their sixties; it was their first offence; none of the appellants has any criminal antecedent; they belong to the poor strata of society and also have liability of their children; and they are suffering from various ailments and also are residents of same localities.
10. Learned State Counsel also stated before this Court that he has not received any report regarding any other criminal antecedents of the appellants.
11. Having heard learned counsel for the appellants, on merits of the appeal, I do not find any reason to interfere in the well reasoned judgment and order passed by the learned trial court. The prosecution succeeded in proving its case beyond all reasonable doubt against all the appellants with cogent and unshakable evidence. Thus, no interference is warranted.
12. Now, this Court embarks upon to examine the next submission as to whether benefit of Probation of First Offenders Act, 1958 can be extended to the appellants.
13. It is strenuously submitted by the learned counsel for the appellants that the provisions of Section 4 of the Act of 1958 may be pressed into service and to postpone the sentence awarded by the Court below and to release the appellants on the bond of good- conduct to be executed by them before the District Probationary Officer, Haridwar or before learned trial court.
14. In order to buttress his argument, learned counsel for the appellants placed reliance on the judgment passed by a Coordinate Bench of this Court in Criminal Revision No.154 of 2012 Harendra Singh Vs. State of Uttarakhand dated 29.08.2020, wherein the Court 4 has granted the benefit of the Act, 1958. Paras 9 and 14 of the aforesaid judgment, which contained Hon'ble Apex Court's judgments on the point are quoted below:-
"Para-9: 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."
Para-14: In this regard, the Hon'ble Apex Court in the case of "Paul George vs. State of NCT of Delhi" reported in 2008 SCC (Cri.) 2, 768, in paragraph no.12, has held as under:
12. This litigation has been going on for the last 20 years and has been fought tenaciously through various courts, we are also told that the appellant who has had a good career throughout but for this one aberration has since been dismissed from service on account of his conviction. We, therefore, while dismissing the appeal, feel that the ends of justice would be met if we direct that the appellant be released on probation under Section 4 of the Probation of Offenders Act, 1958 on conditions to be imposed by the Trial Court. The appeal is disposed of in the above terms."
15. It is submitted by learned counsel for the appellants that the Coordinate Bench of this Court while extending benefit of the aforesaid provisions of the Act, 1958 has placed reliance upon the judgment rendered by Hon'ble Apex Court, which has been quoted in Para 14 of the judgment of co-ordinate Bench of the Court.
16. Learned AGA does not dispute the application of the provisions of Section 4 of the Act, 1958, as in view of the provisions of the said Act, 1958, power can be exercised, while if a person is found guilty of committing an offence not punishable with death or imprisonment for life and with regard to the facts and circumstances of the case, like nature of the case and character of the offender, the appellants can be given benefit of the said provision.
517. In order to appreciate the argument advanced by the learned counsel for the appellants, the provisions of Section 4 of the Act of 1958, is required to be appreciated. The same is quoted hereinbelow:-
"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 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. (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."
18. From perusal of the aforesaid provisions, it is clear that the power vests with the Court to release a person on a bond of good conduct by extending the benefit of Section 4 of the Act 1958, if any person is found guilty of having committed an offence not punishable with death or imprisonment for life, but, at the same time, the Court will extend the benefit so provided under Section 4 of the Act of 1958 6 having due regard to the nature of the offence and the character of the offender.
19. From the perusal of the record, it is clear that the offences, for which the appellants were convicted, do not entail the punishment of death or imprisonment for life. So, the nature of the offences is such, where, this Court can give benefit of the Act of 1958 to the appellants. The submission made by learned counsel for the appellants regarding the fact that there is other circumstance which would warrant the application of Section 4 of the Probation of Offenders Act, 1958 to the facts of the case, and they have undergone the trauma of the criminal trial for the last so many years, coupled with the fact that the appellants have no criminal antecedents and even prior and after the aforesaid crime, this is an only offence which has so far been registered against them and they are the permanent residents of District Haridwar. They are neighbours and belong to the lower strata of the society.
20. In this view of the fact, this Court is of the opinion that there is no useful purpose for immediately sending the appellants to jail for serving the sentence awarded by the learned trial court.
21. In this view of the matter, the appeal is partly allowed. Judgment and order passed by learned trial court is hereby affirmed. The conviction as recorded by the learned trial court shall remain intact. However, so far as the sentence part is concerned, it is directed that the appellants shall be released on probation for a period of one year on furnishing a personal bond with two sureties each of like amount to the satisfaction of the concerned trial court. The fine imposed by the trial court shall be deposited by the appellants within a period of one month, if not already deposited, from the date of receipt of this order, with the Court concerned. The concerned Magistrate shall be at liberty to impose such condition(s) while executing the bond which he feels fit in accordance with the law. It goes without saying that if appellants fail to observe good conduct and behaviour during probation, or is found violating any condition imposed, the Court concerned shall be at liberty to cancel the bond of 7 good conduct calling the appellants to serve out the sentence awarded by the Court below. The appellants are on bail. They need not to surrender provided they execute the bond of good conduct before the court concerned as directed above, within 15 days from the date of this judgment.
22. Let a copy of this judgment, along with the LCR, be sent forthwith to the learned trial court for information/compliance.
(Pankaj Purohit, J.) 04.04.2024 SK