Bangalore District Court
(Represented By The Learned App) vs 3. The Court on 14 March, 2022
1 cc 3237 of 2015
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 14th DAY OF MARCH 2022
PRESENT
SRI S.S.BHARATH M.A. LL.M.,
ST
XLI (41 ) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU
CRIMINAL CASE NUMBER 3237 OF 2015
BETWEEN
1. STATE represented by
Bengaluru City Railway Police. ....COMPLAINANT
(Represented by the learned APP)
AND
1. HITESH @ RAGHAVENDRA
S/o Late Ramesh,
Aged about 25 years,
R/at NO.15, 12th Cross,
G.K.V.K., Double Road,
Vidyaranaypura,
Bengaluru97.
....ACCUSED
(Represented by Sri.Gajendra.C., Advocate)
THE BENGALURU CITY RAILWAY POLICE HAVE
CHARGE SHEETED THE ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 170, 419,
420 OF IPC.
2 cc 3237 of 2015
AFTER COMPLETION OF ADJUDICATION, THIS CASE
COMING ON FOR JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING...
Offences alleged u/s : 170, 419, 420 of IPC.
Charge sheet filed on : 10092014
Trial commenced on : 12102017
Trial completed on : 21102021
Judgment date : 14032022
Total duration : DaysMonths Years
04 06 07
JUDGMENT
1. Case of the prosecution is as under; On 04/07/2014, in a train which is famously called as 'Malgudi Express', when it was moving towards Bengaluru from Mysore, the PW1 and 02 were discharging their duties by way of monitoring the passengers, as they being Police persons. When the said train reached near the place inbetween Hejjala and Kengeri, at about 11.40 a.m., in its S5 compartment, the accused falsely personated him by asserting that he is a Ticket Checking Officer attached to Railways Vigilance. He examined the passengers tickets, as well as their luggages. Both PW1 and 2 enquired him as to his work. He once again asserted 3 cc 3237 of 2015 that he had been attached to Railway Police, Arsikere. But the PW4, who was present in the very same train informed both PW1 and 2 that, previously, before 20 days, he introduced himself as a ticket checking officer and has taken his mobile phone and has not returned it and has been using for his benefit etc.
2. This court has taken the cognizance of the offences punishable under sections 170, 419 an 420 of IPC. As per the directions of the court, CC.No.3237 of 2015 came to be registered. In compliance of section 207 of Cr.P.C, the copies of the charge sheet and other prosecution papers came to be supplied to the accused.
3. The court, after being satisfied as to existence of materials against the accused to proceed further in this matter, framed the charge, read over the same to the accused in Kannada language in which he claims 4 cc 3237 of 2015 to be conversant with. But he did not plead guilty and he claimed then, to be tried. Therefore, this court issued summons to the witnesses.
4. Prosecution has examined all its witnesses mentioned in the chargesheet except CW2 and 03. Despite proclaimation, the presence of those witnesses has not been secured. Therefore, this court has dropped them. Statement of accused under section 313 of Cr.P.C., came to be recorded. He denied the incriminating circumstances explained to him and he did not choose to adduce evidence.
5. Prosecution relies on the evidence of PW1 to 4. It further relies on Ex.P1 to Ex.P11.
6. Heard the learned Sr.APP.
7. Heard the learned counsel for accused. 5 cc 3237 of 2015
8. Following points arise for determination;
1) Whether the prosecution proves beyond reasonable doubt that, on the aforementioned date, at the said time, in the said train, at the said spot, the accused falsely personated him as a public servant, infront of the passengers of the said train and he pretended that he was a Ticket Checking Officer of Railways Vigilance and he assumed the character of the said officer and examined the tickets of the passengers and their luggages and has taken the mobile phone belongs to PW4 and therefore, his above acts amount to an offence punishable under section 170 of IPC and the accused is liable to be punished ?
2) Whether the prosecution proves beyond reasonable doubt that, on aforementioned date, time and place, in the said train, the accused has cheated the passengers at large of the said train and particularly took the mobile phone belongs to PW4 and he did not return the same and therefore, his acts amount to an offence punishable under section 419 of IPC, as the accused has falsely personated him as a Ticket Checking Officer attached to Railway's Vigilance and by that way he has taken the mobile phone of PW4 as above without any authority ?
6 cc 3237 of 2015
3) Whether the prosecution proves beyond reasonable doubt that, on the aforementioned date, time, at the said train, the accused by falsely personating him as a ticket checking officer attached to Railway's Vigilance, he falsely induced PW4 to deliver his mobile phone to him and accordingly has cheated him and he used it for his personal use and has not returned it as well and by that way he has cheated the passengers of the said train at large and particularly the PW4 dishonestly induced him as above and his said act induced the PW4 to deliver his property ie., his mobile phone and therefore the accused shall be punished for an offence punishable under section 420 of IPC?
9. Above points have been answered as under; Point no.01 : In the Affirmative Point no.02 : In the Affirmative Point no.03 : In the Affirmative Point no.04 As per final orders for the following reasons...;
REASONS The prosecution is duty bound to prove the guilt alleged as above against accused . The burden to prove the 7 cc 3237 of 2015 aspects stated herein above against the accused, heavily rests upon the prosecution. The points aforementioned have been taken up seperately for discussion.
The prosecution as aforesaid has relied upon the evidence of PW1 to 4. As could be seen from the record as above, the prosecution further relies on Ex.P1 to Ex.P11 as well.
10. Point No.01 ; The burden of proof is upon the prosecution to prove that the accused falsely personated him before the passengers of the train aforesaid and checked their tickets and luggages by asserting that he is a Railway ticket checking officer attached to Railway's Vigilance. Particularly it has been asserted by the prosecution that the acused has falsely personated him as above, before PW4 as well and induced him to deliver his mobile phone and after delivery of the same, he has not returned it as well. 8 cc 3237 of 2015
11. PW1 and PW2 both have deposed similarly by supporting the case of the prosecution and their evidence is specific to an effect that, when the said train, at the said time, reached a place inbetween Hejjala and Kengeri, at S5 Compartment, the accused was checking the ticket and luggages of the passengers present thereof. They developed some doubt and enquired him. But he did not answer them satisfactorily. He introduced infront of them that he is a Railway police attached to Arsikere Railway station and on further enquiry, he answered that he belongs to police department and he belongs to one Prasad's Batch. He further answered them that he works for Samaya News Channel as a reporter and one Karanth attached to Channapatna Railway police is his friend.
12. As could be seen from the record, PW1 is none other than the said Karanth. PW2 suddently enquired him that whether he has seen the said Karanth. Accused 9 cc 3237 of 2015 answered him that he has seen the said Karanth. Suddenly PW2 informed him that the person, who enquired him at first instance, who was standing just infront of him, is a man called Karanth. Suddenly the accused apologized before them. At that particular point of time, PW4 interfered and informed both PW1 and 2 that the accused has taken his mobile phone before 15 days to call somebody and has not returned it.
13. In their cross examinations, the defence of the accused could be seen. The defence of the accused is, both PW1 and 02 were taking a gas cylinder with them in the said train and the said act came to be questioned by accused and accused was videographing the said thing in his mobile phone and to overcome their mistake, present case has been filed with false allegations etc. Further. question regarding their deployment to the said duty has been put by the learned advocate appearing for accused and also as to 10 cc 3237 of 2015 authorization to execute their work in the said train, also has been questioned.
14. Both PW1 and 2 in their respective cross examinations, have answered that the members of public have not been made as witnesses to the present matter.
15. However the defence of the accused appears to be clearly double edged. Because on one hand learned advocate for accused suggested to both PW1 and 2 that, the accused was not present in the train at the alleged time and he further suggests that both PW1 and 2 were also not present. On the other hand, it is his defence that both PW1 and 2 indulged themselves in shifting of a gas cylinder and when it came to be questioned by accused, they have filed the present case etc. 11 cc 3237 of 2015
16. Therefore, taking into consideration, the nature of the questions which have been put upon both PW1 and 2 in their respective cross examinations, taking into consideration the nature of the defence putforward as above, taking into consideration the totality of their evidence adduced as above, this court opines that the court has no hesitation to state that the cross examination conducted upon both of them has been very ineffective and the same doesnot take away the strength of the their evidence adduced during their respective examinations in chief.
17. Learned advocate appearing for accused has questioned both PW1 and 2 as to their right to conduct the duty at the said spot. Although they have answered that as per the directions of PW3, they indulged themselves in discharging their duty as above, the questions of the counsel appearing for accused went on to an extent, as to whether any written directions have been issued or not. Therefore, 12 cc 3237 of 2015 considering the double edged defence put as above by accused, considering the nature of the questions came to be put upon both the witnesses, one thing is clear that although the defence/stand as above, have been put by the learned counsel for accused, he has further tried to establish before the court that both PW1 and 2 had no permission to discharge their duty at the said spot, as on the alleged date and time.
18. Learned advocate has suggested the above witnesses that when their act of shifting a gas cylinder was being videographed, by the accused, his mobile phone came to be taken and the recorded clippings were deleted etc. But it is not the case of the accused that after being alighted from the train and further after being enlarged on bail as well, case against the PW1 and 02 on shifting fo the alleged cylinder, has been filed before appropriate authority or otherwise. 13 cc 3237 of 2015 Therefore the defence putforward to the said effect is bald and it cannot be considered.
19. PW3 is a retired PSI, who as on the date of the alleged crime has reportedly discharged his duty as a PSI of Channapatna Railway Police station. He deposed that he has instructed PW1 and 2 to discharge their duty of said nature. He had some information through the known sources that in the said train, from many days, there has been some false personation activities and few have been troubling the passengers by personating falsely themselves as Ticket Checking Officers and have been checking the tickets and luggages of passengers and have been taking away the mobile phones and therefore, he has instructed both PW1 and 02 to search for such persons. He deposed clearly that in the aforementioend train, at aforementioned time, at aforementioned spot, inbetween Hejjala and Kengeri, 14 cc 3237 of 2015 the acused came to be enquired reportedly by both PW1 and 02 and he introduced himself as a police attached to Arsikere Railway Police and subsequently after facing further enquiry, he reportedly introduced himself as a reporter attached to Samaya News Channel etc, and reportedly he has asserted that he is a close associate of one Karanth the PW1 herein. But when he has learnt that the PW1, who enquired him at first instance through PW2, that he is only Mr.Karanath, he apologized for his acts and subsequently PW4 reported both of them that the accused has taken away his mobile phone before 15 days and he has not returend it and he has induced him to deliver the said property i.e., the mobile phone by falsely personating him as an officer attached to Railway's Vigilance.
20. He has specifically deposed in his examination in chief that on his arrest and examination, in his wallet, they found during their investigation, the mobile phone 15 cc 3237 of 2015 MO.No.1 Railway Pass and Identity Card, Pan Card, an acknowledgment dated 19/06/2014 issued by Jalahalli police on an information of accused regarding his alleged loss of wallet etc, and all those items came to be seized and the said mobile phone is Mo.1 herein. IO, the PW3 has further deposed that finger print examination also has been conducted in respect of accused. With respect to the MO.1, call details also have been examined and it has been learnt that the accused has used the said mobile phone to call his friends.
21. As could be seen from his crossexamination, questions regarding alleged ill treatment on accused after his arrest etc, have been put. As could be seen from the order sheet, report of an IO has been called upon by my erst while predecessor to explain the allegations made by the accused as to alleged assault suffered by him at the instance of PW1. Though PW 3 has denied those suggestions. Learned advocate for 16 cc 3237 of 2015 accused has suggested him specifically that PW1 only has assaulted him after his arrest.
22. With respect to the said aspect, the accused has to workout the remedies if any in accordance with law. At this stage, said aspect cannot be examined.
23. However PW3 in his further crossexamination has answered that other passengers were belonged to other places. They could not be enquired. After taking accused to their police station by both PW1 and 2, by the time all of them reached the Railway station again, the train had left the station and therefore, he could not make the copassengers as witnesses of this case.
24. Further to show that the accused was not present in the train on the said date and time, the learned advocate appearing for accused has questioned the IO as well that no documents showing his journey as 17 cc 3237 of 2015 on the date alleged and the time alleged has been produced. Therefore, it is clear that the said questions do not help the accused. Because he only suggests that accused has faced ill treatment at the instance of PW1 and 2 and he was videographing their alleged act of shfting of a cylinder in the said train compartment etc, and on the other hand, he says that he was not present in the train etc. Therefore, his above suggestions are contrary to each other and they cannot be believed at all.
25. During his cross examination, although the IO has admitted that to show that the mobile phone belongs to PW4, they have not produced any documents to the court, said admission alone doesnot help the accused for the above reasons.
26. PW4 has supported the case of the prosecution in toto. Although he has been considered partly hostile 18 cc 3237 of 2015 to the case of the prosecution, in his cross examination he has admitted the suggestions of the prosecution that the accused has taken his mobile phone and on 04/07/2014, his mobile phone was taken away by accused as aforesaid. In his cross examination conducted by learned advocate for accused, he has answered that he has not filed any complaint in the police station regarding the said mobile phone against the accused and he had no problem to do that. However regarding the features of the said mobile phone etc, came to be questioned by the learned advocate appearing for accused. He has answered that its a dual Sim Mobile Phone and he could not remember his phone number, as 05 years time has been elapsed. Apart from those questions, nothing much has been elicited.
27. It is hereby made clear that though my learned predecessor has gone further to mark Ex.P1 to 11, 19 cc 3237 of 2015 a detailed examination of the record, makes it clear that Ex.P2 and 3 have not been marked at all. Therefore, for the purpose of convenience, the marking present on the documents have been considered for the purpose of identification of the exhibits.
28. Ex.P11 is the call details and the records make it clear that the call details are pertaining to the phone No.9036749919. The examination of PW4 is dated 19/09/2019. The Ex.P11 got marked much prior to his examination i.e., on 15/10/2018. It came to be marked during examination of PW3.
29. Inspite of that, no suggestion has been put regarding Ex.P11 on PW4 by the learned advocate for accused. There is no dispute on the point that the said number belongs to PW4 herein. The evidence of PW3 is very specific that as per Ex.P11, it has been 20 cc 3237 of 2015 learnt that the accused herein has used the said cell phone of PW4 to call his friends. No arguments has been addressed by the learned advocate appearing for accused and prosecution also has not showed to the court as to out of the call details available in Ex.P11 which call has been forwarded at the instance of accused herein to his friend.
30. Taking into consideration, the nature of defence of accused and considering the overall evidence adduced by PW1 to 3, this court is of the opinion that though no passengers of the said train is a witness, same does not take away the strength of the case of the prosecution. Though usage of mobile phone at the instance of accused can be disbelieved for the said reason, still considering the aforementioned aspects, the possession over the accused on the said mobile phone, till its seizure, cannot be doubted. Because though a detailed examination has been done on 21 cc 3237 of 2015 above witnesses, nothing has been questioned regarding the panchanama, which specifies the aspect as to seizure of the said mobile phone and the panchanama is very clear that the said mobile phone has been seized at the instance of accused.
31. Moreover, the accused did not dispute on the aspect that the said number belongs to PW4. Ex.P5 is being the seizure Mahazar is clear as above regarding the seizure of the said mobile phone. But in view of non examination of the witness to Ex.P5, said mahazar cannot be treated as absolute.
32. But so far as the alleged act of the accused as to impersonation as above is concerned, certainly the case of the prosecution is strong with the help of evidence of PW1 to 3. Only for the reason that they belong to police department, their evidence cannot be disbelieved in toto. As aforesaid, as the crime alleged pertains to a place i.e., a moving train, the 22 cc 3237 of 2015 explanation of the prosecution that, by the time all PW1 to 3 reached the Railway Station, the train had left the station can be believed with the help of evidence of PW4. PW4 is not a passenger. But he carries on a business in the said train and he sells the food stuff called Churmuri. There is no dispute on the said aspect. His crossexamination conducted by advocate for accused is bald. Though his evidence can be ignored with respect to mobile phone at the same time, it cannot be ignored as to the accusations regarding accused's false personation. With respect to his evidence adduced to the said effect, no cross examination has been made. Therefore, his evidence remained intact and no material is there on record to disbelive his evidence.
33. Taking into consideration the aforementioned aspects collectively, presence of PW1 and 2, accused, PW4 in the said train, as on the date and time of alleged crime can be believed. If at all the accused has been 23 cc 3237 of 2015 victimized, as contended, what prevented the accused till date, to set the prosecution into motion against PW1 and 2, has not been explained by the accused as the accused only alleges that a gas cylinder was being shifted by PW1 and 2 in the said train and it was questioned by him and therefore he has been victimized.
34. Therefore, if at all the said version is believed to be true, it comes under a purview of existence of "Special circumstances" and the prosecution papers are slient with respect to the said aspect and even accused also has not adduced any evidence to the said effect and it is an alleged fact present within the knowledge of accused and therefore considering the law present in Section 106 of Indian Evidence Act, this court opines that the said aspect should have been proved and burden should have been discharged to the said effect by the accused alone. 24 cc 3237 of 2015
35. For the purpose of clarity Section 106 of Indian Evidence Act is hereby extracted below; Section 106 in The Indian Evidence Act, 1872
106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him
36. Hon'ble Supreme Court, in a case decided by it between Nagendra Sah V/s State of Bihar has clearly held that when a case is resting on circumstancial evidence, if the accused fails to offer a reasonable explanation to discharge his burden to the satisfaction of Section 106 of Indian Evidence Act, such failure should be considered against him and if additional link to the chain of circumstances is not established by accused, then such failure of the accused though not a ground to convict him, still if such fact is in special knowledge of accused, it shall be established by him only.
25 cc 3237 of 2015
37. As he has failed to discharge the said burden, mere suggestion as to the same does not help the accused to overcome the case of the prosecution and also to overcome the evidence of PW1 to 4 and therefore, for all the above reasons collectively, I answer Point No.1 in the Affirmative as there is no doubt regarding the evidence of PW1, 2 and 4.
38. Point Nos.02 and 03: These points are pertaining to alleged act of cheating and false personation, dishonest inducment as to delivery of property. For the reasons discussed herein above, this court has no doubt to say that the accused has cheated PW4 by falsely personating him as above and has taken his mobile phone.
39. Although the Ex.P11 the call details has been furnished to the court, though the prosecution has not described as to amongst the call details present in the Ex.P11, which are those calls which have been 26 cc 3237 of 2015 made by accused using the said number and phone to his friends. Though the dates could be seen in it, it does not establish that those calls have been made by accused only. It is no doubt true that the case alleged is dated 04/07/2014. Ex.P11 pertains to a period commencing from 01/04/2014 till 11/07/2014. Hence inspite of no explanation is being present to the said effect at the instance of prosecution, as his possession over the said mobile phone being not disputed by the accused, particularly with respect to the period commencing from the date of incident till the same came to be seized etc, the same has disturbed the defence of the accused.
40. Moreover there is no specific defence at the instance of accused regarding the same. Therefore, for the reasons discussed while answering the previous point No.1 as well and for all the above collective reasons, as the evidence of PW4 is being very specific to an effect that the accused has falsely personated him, as 27 cc 3237 of 2015 a police attached to crime branch police etc, though there is a difference in stating the designation of the impersonated officer, it cannot be stated that the accused has not falsely personated before him. Therefore, in view of evidence of PW4 is being intact on the said aspect as above, there is no hesitation for this court to state that, for the above collective reasons, including the reasons stated with respect to aforementioned point No.1, that the accused has impersonated him before the PW4 and has cheated the PW4. Hence, the case as to cheating by way of impersonation has been established by the prosecution against accused.
41. So Far as the case as to cheating on PW4 and alleged dishonest inducement to deliver his mobile phone is concerned, though there has been some difference in evidence of the prosecution as to date of such inducment to deliver his mobile phone to accused etc, those differences do not put the case to 28 cc 3237 of 2015 dark particularly with respect to the delivery of the said mobile phone to accused by PW4. Though in the cross examination of the witnesses, the counsel appearing for accused has questioned regarding the description of the mobile phone, still he does not dispute the Ex.P5 and its contents in his cross examination atleast during cross examination of IO.
42. Though the Ex.P5 the seizure mahazar has not been supported with the help of any of its witnesses, as the possession of accused over the said phone till its seizure has not been disputed by the accused the possession of accused over said phone can be believed. No doubt the burden is on the prosecution to establish the same. But considering the evidence of PW4, this court has no hesitation to state that the case as to dishonest inducement on the basis of false impersonation against accused, shall be believed. Because though in the crossexamination of PW4, learned advocate appearing for accused has suggested 29 cc 3237 of 2015 that Mo.1 is not his phone and why he has not called the police once he handedover it to accused etc, nebulously, by suggesting PW4 that it doesnot belong to him, the accused has nebulously admitted that MO.1 was with him. Though the accused disputes the right of PW4 over the said MO.1 Mobile Phone, he does not whisper whether he had the possession over it till its seizure or not and therefore, for all the above reasons collectively, there is no impediment for this court to state that the accused has cheated the PW4.
s
43. Therefore, for all the above reasons stated herein above including the reasons stated while answering the point No.1 aforementioned, this court is of the opinion that the prosecution has been succesful in establishing that by way of cheating and by way of dishonest inducement, the accused has promoted PW 4 to deliver his mobile phone MO.NO.1 to him and 30 cc 3237 of 2015 therefore both point Nos.02 and 03 are hereby answered in the Affirmative.
44. Learned advocate appearing for accused has placed his reliance on a judgment stated hereinbelow, delivered by Hon'ble Apex court in Criminal appeal No.984/2007 dated 15/03/2002. He has drawn the attention of the court to its page No.25, paragraphs No.19 to 21. He has argued placing his reliance on the said judgment that, the statement of police officer can be relied on and the same may also form the basis for convicting the accused, if for the same is so reliable and trustworthy and if it gets corroborated with the help of other evidence on record and the court has to take greater caution, thereafter shall accept such evidence of a police person with greater degree of care to do justice only and the evidence of such person shall point out specifically the guilt of the accused without there being any blemish. 31 cc 3237 of 2015
45. I have carefully considered the above judgment of Hon'ble Supreme Court and the ratio laid down by the Hon'ble Supreme Court in the above case. The ratio present in the above judgment is that the court can accept the evidence of the police person if his evidence is trustworthy and if it is being corroborated by other evidence on record.
46. In the case on hand, PW1 to 3 are police persons.
With respect to the nature of the case and the place at which the incident proved to have taken place is being a train, as it is the specific case of the prosecution that the police persons only after developing a doubt on accused have caught accused redhanded, when he indulged himself in checking the tickets by falsely personating him as a person attached to Railway vigilance with the designation as to the alleged "Ticket Checking Officer," in the backdrop of the above aspect certainly the evidence of 32 cc 3237 of 2015 police persons would play a pivotal role. Hence, taking into consideration the above ratio only, only for the reason that the PW1 to 3 are being police persons, for the said reason alone their evidence cannot be said to be untrustworthy when their evidence being corroborated by the evidence of PW4 and by the MO.No.1. The above judgment relied on by the accused would certainly be taken into consideration and it is the opinion of this court that the ratio present in the above case shall be squarely be applied to the facts and circumstances of this case. Because by virtue of their role played in the case, all PW1 and 2 and PW4 are the eyewitnesses only to the case. Moreover PW4 is the eyewitness cum victim in this mattter. The arguments of the prosecution can be accepted as it has been addressed that out of some fear the PW4 might have not set the criminal law into motion soon after occurence of the aforementioned incident and it is probable that he had seen both PW1 and 2 enquiring him in the very 33 cc 3237 of 2015 same train where he sells the said food stuff he might have disclosed the incident. Therefore, the evidence of PW1 and 2 is certainly corroborated by the evidence of PW4 and by Mo.1 of this matter.
47. It is not the case of the prosecution that the accused is a habitual offender. Further it is not the case of the prosecution that he has collected any huge sum from the passengers by way of false personation. It is the case being proved by the prosecution that the accused by way of false personation as checked the tickets and luggages of the passengers and has induced PW4 to deliver his mobile phone and therefore, keeping in mind the aforementioned aspects this court deems it appropriate not to sentence the accused, but to proceed further in accordance with the law present in the provisions of Probation of Offenders Act. 34 cc 3237 of 2015 FINDINGS Therefore accused is hereby held guilty for the offences punishable under sections 170, 419 and 420 of IPC.
MO.1 is ordered to be released in favor of PW4 forthwith.
In the Judgments of Hon'ble Supreme Court, which have been stated hereinafter, it has been held that the benefit of Probation of Offenders Act is not excluded by the provisions of mandatory minimum sentence prescribed under the IPC. The cases are between Joginder Singh V/s State of Punjab and in another case between Lakhvir Singh V/s State of Punjab and another and further in another judgment i.e., in a case between State of Madhya Pradesh V/s Vikram Das. Hence, this court is of the opinion to state as herein under;
35 cc 3237 of 2015 Therefore, considering the aforementioned aspects, this court in the light of above discussions wants to invoke the provisions of Probation of Offenders Act and this court does not want to sentence the accused, keeping in mind the nature of the case and accusations present and proved against accused.
For the purpose of clarity both sections 3 and 4 of Probation of Offenders Act are hereby extracted as below;
Section 3 in The Probation of Offenders Act, 1958
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 36 cc 3237 of 2015 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. Section 4 in The Probation of Offenders Act, 1958
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 37 cc 3237 of 2015 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 subsection (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 subsection (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 subsection (3) shall explain to the 38 cc 3237 of 2015 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.
CONCLUSION Therefore, taking into consideration, the relevant factors mentioned hereinabove accused is hereby admonished in the open court under section 03 of Probation of offenders Act and he is accordingly released. Above admonition is warranted in the opinion of this court having regard to the circumstances discussed herein above which are prevailing in this case and this court has felt that it is expedient to do it as well.
But it is not the release of accused on admonition simplicitor. This court is hereby releasing him directing him to execute his personal bond for Rs.02,00,000/ with a surety for the likesum and he is further direted to appear before 39 cc 3237 of 2015 the court after 6 months from today and to receive further orders and also, whenever called upon within next 6 months as well by the court and in the meantime he shall keep the good conduct and shall maintain good behavior.
Further with respect to above orders, he has to furnish surety as aforesaid after executing his personal bond as above. The jurisdictional police inspector is hereby appointed as a probation officer invoking section 04 of P.O.Act, for the purpose of this judgment, namely Sri.V.Shiva Kumar and the accused herein is directed to appear before the said inspector till completion of 6 months from today and shall mark his attendance once in every 30 days before the said officer and for the purpose of above orders, office shall call this case after 6 months from today.
40 cc 3237 of 2015 Office to forward the copy of this judgment to the concerned officer forthwith and shall communicate this order to the others concerned.
Office shall furnish a copy of the above judgment free of cost to accused forthwith.
As no orders have been passed directing the accused to pay any sum of fine or compenstation, considering the suffrage of PW4 proved to have been suffered by him at the instance accused, this court feels that he shall be adequately compensated. But in view of no fine amount has been imposed on him, no order has been imposed for payment of compensation as well, as aforesaid, victim compensation scheme enshrined in section 357A of Cr.P.C., is invoked, further particularly invoking section 357 A(3) of Cr.P.C, the recommendation is hereby made for payment of compensation to PW4. Hence, office is hereby directed to communicate the present orders to Hon'ble DLSA, Bengaluru Urban. 41 cc 3237 of 2015 Office shall forward the copy of the above judgment together with above recommendations to DLSA, Bengaluru Urban, both by way of email and by postal services.
MO.2 and 3 are concerned, is hereby directed to be confiscated to state after the lapse of an appeal period.
IO is directed to furnish a report regarding the properties in PF No.29/2014 ( P.R.No.05/2017) stated in S.I.No.4, the item Nos.4 to 6 forthwith and shall receive further orders.
S.S.BHARATH XLI (41ST) ACMM, BENGALURU 42 cc 3237 of 2015 ANNEXURES List of witnesses examined on behalf of prosecution: PW.1 : P.V.Karanth PW.2 : L.K.Venkatesh PW.3 : H.Rudrappa PW.4 : Sadik Pasha List of documents marked on behalf of the Prosecution: Ex.P.1 : Report Ex.P.1(a) : Signature of PW1 Ex.P.2 : Not marked Ex.P.3 : Not marked Ex.P.4 : FIR Ex.P.4(a) : Signature of PW3 Ex.P.5 : Panchanama Ex.P.5(a) : Signature of PW3 Ex.P.6 : Railway Pass Identity Card Ex.P.7 : Railway pass Ex.P.8 : Pan Card Ex.P.9 : Acknowledgment Ex.P.10 : Complaint Ex.P.11 : CDR Details Ex.P.11(a): Signature of PW3 List of witnesses examined on behalf of accused : NIL List of documents marked on behalf of the accused : NIL 43 cc 3237 of 2015 List of materials marked on behalf of the Prosecution: MO.1 : Mobile belongs to complainant MO.2 : Mobile belongs to accused MO.3 : Purse containing Cash Rs.240/ S.S.BHARATH XLI (41ST) ACMM, BENGALURU;