Punjab-Haryana High Court
Jaspal Singh And Another vs State Of Punjab on 25 September, 2012
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
CRR No.2423 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Revision No. 2423 of 2012(O&M)
Date of Decision: September 26, 2012.
Jaspal Singh and another.
...... PETITIONER(s)
Versus
State of Punjab.
...... RESPONDENT (s)
CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr. Baldev Singh, Senior Advocate with
Mr. Sudhir Sharma,
Advocate, for the petitioners.
Mr. J.S.Sandhu, AAG, Punjab.
Mr. Uday Chauhan,
Advocate, for the complainant.
*****
RAM CHAND GUPTA, J.(Oral)
The present revision petition has been filed against judgment dated 11.08.2012 rendered by learned Additional Sessions Judge, SAS Nagar, Mohali vide which appeal filed by the present petitioners against judgment and order dated 22.07.2011 passed by learned Chief Judicial Magistrate, SAS Nagar, Mohali convicting them for offences under Sections 382/332/353/186 IPC read with Section 34 IPC was modified to the extent that their conviction for offences under Sections 382/186/34 IPC was set aside and however, their conviction for offences under Sections 332/353 IPC CRR No.2423 of 2012 -2- was maintained and however, the sentence was reduced from one year to six months under each count while making them to run concurrently.
I have heard learned counsel for the parties and have gone through the whole record including both the judgments rendered by learned courts below.
Brief allegations against petitioners-accused are that, complainant, Head Constable Mohan Singh alongwith Constable Balwinder Singh was on patrol duty when they stopped the motorcyclist for checking and however, they were challenged by the present petitioners-accused on the plea that they were having no right to check the motorcycle and in that process petitioners-accused caused simple hurt by giving slap to complainant HC Mohan Singh and also abused him. They also attacked C. Balwinder Singh when he tried to save the complainant. Even his mobile phone was snatched. Petitioners were held guilty by learned trial court. Their appeal against judgment of conviction and order of sentence was partly allowed as aforementioned by learned appellate court.
It has been contended by learned senior counsel for the petitioners that he does not want to press the present revision petition so far as the judgment of conviction for offences under Section 332/353 IPC as passed by learned trial court and as affirmed by learned appellate court is concerned and that he only want to press this revision petition against the order of sentence. It is further contended that during the pendency of this revision petition the matter was compromised with the only alleged injured i.e. HC Mohan Singh vide compromise Annexure P6. He has also placed on record affidavit, Annexure P7 of complainant to this effect. However, as the CRR No.2423 of 2012 -3- offences are non-compoundable hence, it has been contended by learned senior counsel for the petitioners that some leniency in the matter of sentence be taken. It is further contended that petitioners are not previous convicts and they are also not involved in any other case and that they have been facing trial for the last about 7 years. It is further contended that they have already undergone about one month 15 days of the sentence. It is also contended that the offence, for which they were convicted, is punishable for maximum imprisonment of three years and hence, they are having right to be released on probation as provided under Section 360 Cr.P.C. It is further submitted that no reason whatsoever has been given by learned Additional Sessions Judge as to why the said relief was not granted to the petitioners.
Complainant is also represented by counsel, who has stated that the dispute has since been compromised.
It is pertinent to reproduce Sections 360 and 361 of Code of Criminal Procedure, which read 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 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: CRR No.2423 of 2012 -4-
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 pass 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 aside 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 CRR No.2423 of 2012 -5- 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 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.
361. Special reasons to be recorded in certain cases.-- Where in any case the Court could have dealt with,-
(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or
(b) a youthful offender under 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, but has not done so, it shall record in its judgment the special reasons for not having done so."
The offence for which the present petitioners are convicted, is punishable for maximum imprisonment of three years. They have been facing trial for the last about 7 years. No reasons whatsoever have been given by learned Additional Sessions Judge as provided under Section 361 CRR No.2423 of 2012 -6- Cr.P.C. as to why the relief for being released on probation under Section 360 Cr.P.C. was not given to the present petitioners . Learned senior counsel for the petitioners has also placed reliance upon Buta Singh v. State of Punjab, 2004(3) RCR(Crl.) 605, wherein under the similar circumstances, benefit of probation was given to the accused for offences under Sections 332/333 IPC read with Section 34 IPC.
Hence, in view of these facts, the present revision petition is partly accepted. While maintaining the judgment of conviction as passed by learned Additional Sessions Judge, SAS Nagar, Mohali against the present petitioners, the order of sentence is, hereby, set aside.
Petitioners are directed to be released on probation on their furnishing probation bonds of good conduct for a period of two years to the satisfaction of Chief Judicial Magistrate, SAS Nagar, Mohali. During this period, they will keep peace and be of good behaviour and be called upon to receive the sentence in case of violation of any condition of the bond. In addition to it, they are also directed to pay `10,000/- each as compensation, which shall be deposited in the trial court and it would be released to complainant-injured.
Disposed of accordingly.
( RAM CHAND GUPTA ) September 26, 2012. JUDGE 'om'