Andhra HC (Pre-Telangana)
Syed Salim vs M.J. Simon And Ors. on 22 March, 1990
Equivalent citations: 1991CRILJ294
ORDER
1. The petitioner filed a complaint C.C. 33/87 in the Court of the V Addl. Munsif Magistrate, Guntur, against the accused herein for offences punishable under sections 323, 342 and 506 read with Section 34, I.P.C. The first accused was working as Sub-Inspector and the second accused was working as Head Constable of Kothapeta Police Station in Guntur. The allegations in the complaint in brief are that one Ramesh Aggrawal occupied a room in the Hotel belonging to the complainant's father on 28-1-1986 at about 4.45 p.m. and within a few minutes thereafter he informed at the counter that he lost some money in the room and immediately the complainant's father gave a report to the police station at Kothapeta, Guntur. It is alleged that about 8 p.m. both the accused along with some constables took the complainant, his brother-in-law and some other employees of the Hotel to the police station. There the complainant was detained for three days by the accused and he was tied to a beam and then the accused and other constables beat him and he was threatened that unless he admits the offence he would be done away with. The learned Magistrate after considering the evidence adduced by the complainant and the defence evidence convicted both the accused under sections 342, 323 and 506 read with S. 34, I.P.C. But he released them after due admonition under Section 3 of the Probation of Offenders Act, 1958. The complainant filed this revision under Section 11(4) of the Probation of Offenders Act which reads as follows :
"11(4) : When an order has been made under Section 3 or Section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law :
Provided that the Appellate Court or the High Court in revision shall not inflict a graver punishment than might have been inflicted by the Court by which the offender was found guilty.
2. The learned counsel for the petitioner (complainant) contended that since the -accused was convicted under Section 506 of the I.P.C. and on the facts proved the offence falls under Part 2 of Section 506, I.P.C. where the punishment prescribed is imprisonment for a term which may extend to seven years, the Magistrate cannot exercise the jurisdiction under S. 3 of the Probation of Offenders Act. Section 3 of the Probation of Offenders Act reads that when any person is found guilty of having committed an offence punishable under Section 379 or 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. The learned counsel for the respondent-accused has pointed out that the learned Magistrate in paragraph 22 of his judgment has stated that the offence under Section 506 read with Section 34, I.P.C. is punishable with imprisonment for a term which may extend to two years or fine under Section 506, I.P.C. and therefore he is convicted under Section 506, Part I, I.P.C. where the maximum punishment is imprisonment for two years or with fine or with both. Of course, the learned Magistrate did not say whether he has convicted them under Part I or Part II of Section 506, I.P.C. But even accepting the contention of the learned counsel for the respondent (accused) that the conviction under Section 506 is only under Part I and therefore there is nothing illegal in invoking the provisions of Section 3 of the Probation of Offenders Act, the further question to be considered is whether it is a fit case where the benefit of Section 3 of the Probation of Offenders Act can be given to the accused.
3. The learned counsel for the petitioner has pointed out that the evidence in this case shows that P.W. 1 and others were taken to the Kothapeta Police Station, Guntur by the accused who are the Sub-Inspector and the Head Constable and there the complainant was asked to admit the offence and threatened that if he does not admit the offence, they will see his end and then he was tied to a beam in a room in the police station and kept there for three days and beaten. It is, therefore, contended that this is not a case where the accused who have committed a serious offence are entitled to be let off with an admonition under Section 3 of the Probation of Offenders Act. It is also pointed out that A1 is aged about 44 years and A2 about 38 years.
4. On the other hand the learned counsel for the respondents (accused) has pointed out that the evidence is not at all satisfactory for conviction of the accused but the learned Magistrate having convicted the accused found that the sentence will be adequate if they are let off by admonition and therefore there are no grounds to interfere in this revision.
5. Since the respondents (accused) have not preferred any appeal against their conviction under sections 342, 323 and 506 r/w Section 34, I.P.C. it is not open for them to contend in this revision filed by the complainant that there is no reliable evidence for convicting them. The only other question to be considered is whether the order releasing the respondents (accused) after admonition under Section 3 of the P.O. Act is proper and calls for any interference in revision. Section 3 of the Probation of Offenders Act which I have already referred to above says that if any person is found guilty of the offence coming under the scope of that section and no previous conviction is proved against him and the Court by which the person is found guilty is of the 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 he may be released after due admonition. The learned Magistrate had stated that the offence for which they are convicted comes within the scope of the section. He has also stated that there are no previous convictions against the accused. But the third point to be considered in the circumstances of the case. The learned Magistrate said that having regard to the circumstances including the nature of the case etc., he felt it is expedient to release them after due admonition. The facts proved in this case, as I have stated above, are that the accused 1 and 2, who are the Sub-Inspector and Head Constable, have taken the complainant to the police station. Threatened him to admit the offence and wrongfully confined him for three days and beat him in the police station. Therefore, it is a case where the complainant was tortured in the police station by the police officials. In these circumstances, it is a proper case to release them after due admonition under Section 3 of the P.O. Act ? The learned counsel for the respondent-accused has referred to a case of the Supreme Court in Ram Narash Pandey v. State of Madhya Pradesh, . In that case the appellant was prosecuted under Section 506, I.P.C. on the allegation that he has committed an offence by intimidating one lady doctor. The trial Court convicted the appellant under Part II of Section 506, I.P.C. but directed that he may be released under Section 4 of the Probation of Offenders Act on his executing a bond. On appeal, the Additional Sessions Judge altered the conviction to one under Part I of Section 506, I.P.C. but imposed a fine of Rs. 50/- and in default to undergo S.I. for a period of seven days. A revision was filed by the appellant to the Madhya Pradesh High Court but it was dismissed. On those facts, the Supreme Court has stated as follows (at p. 36 of AIR 1974 SC) :-
"Bare perusal of Section 506 makes it clear that Part II of the section deals with a graver form of the offence of criminal intimidation which is punishable with imprisonment of either description for a term which may extend to seven years, or with fine or with both. The punishment prescribed for the offence under Part 1 of Section 506 is imprisonment of either description for term which may extend to two years, or with fine, or with both. As the trial Magistrate released the appellant on probation of good conduct under Section 4 of the Probation of Offenders Act even though the appellant had been found to be guilty of the graver offence under Part II of Section 506, I.P.C. the Additional Sessions Judge should not have in our opinion, deprived the appellant of that benefit without some cogent grounds. Indeed there was all the more reason for not depriving the appellant of the benefit of the order made under Section 4 of the Probation of Offenders Act because the Additional Sessions Judge had partly allowed the appeal of the appellant and found him to be guilty of a lighter offence."
6. The Supreme Court further pointed out :
"Neither the learned Additional Sessions Judge nor the High Court gave any reason why the appellant should be deprived of the benefit of an order under Section 4 of the Probation of Offenders Act under which provision the appellant had been released by the trial Court. In the absence of any cogent reason the appellant, in our opinion, should not have been deprived of that benefit."
6. So the facts in that case would show that though on appeal the appellant was convicted for a lesser offence, he was deprived of the benefit of Section 4 of the P.O. Act and no reason was given as to why he was deprived of the benefit of Section 4 of the Probation of Offenders Act. It will also be useful to refer to certain observations made by the Supreme Court in the said decision :
"The object of the Act is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail. The above object is in consonance with the present trend in the field of penology according to which effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Modern criminal jurisprudence recognizes that no one is a born criminal and that a good many crimes are the product of socio-economic milieu. Although not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of young offenders not guilty of very serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective."
7. The learned counsel for the respondents has also referred to another decision of the Supreme Court in State of Gujarat v. V. A. Chauhan, (1). From the facts of the case it is seen that the accused was convicted under sections 409, 467, 471, I.P.C. read with Sections 5(1)(c) and (2) of Prevention of Corruption Act. In that case the Supreme Court held as follows :-
"The High Court gave the benefit of the Probation of Offenders Act to the accused and since last six years the respondent is enjoying this benefit. The matter seems to be concluded by the decision of this Court where it has been held that the benefit of Probation of Offenders Act cannot be given to an accused convicted of an offence punishable with imprisonment for life. We entirely agree with this decision and hold that the Probation of Offenders Act is not applicable, but in the instant case, as the respondent has already been given the benefit of Probation of Offenders Act we do not think it is in the interest of justice to interfere with it at this stage, after so many years."
8. So, though the Supreme Court has held that the benefit of Probation of Offenders Act cannot be extended to an accused convicted for an offence punishable with life imprisonment, however the Supreme Court did not interfere in that case after several years where the benefit was given to the accused.
9. As I have stated above before giving the benefit under Section 3 of the P.O. Act, the Court has to consider the circumstances of the case including the nature of the offence and the character of the offender. This is a case where the complainant was illegally confined in a police station by the police officials and was tortured because he did not admit the offence. In these circumstances I agree with the contention of the learned counsel for the petitioner that this is not a case where the provision of Section 3 of the Probation of Offenders Act can be invoked and the a can be let off after due admonition.
10. Therefore, the order of the learned Magistrate in directing that the accused shall be released after admonition under Section 3 of the Probation of Offenders Act is erroneous. Under Section 11(4) of the Act, this Court exercising powers of revision, may set aside that order and in lieu thereof pass such sentence on the offender according to the law. Accordingly, the order passed by the learned Magistrate releasing the respondents under Section 3 of the Probation of Offenders Act is set aside. The accused are sentenced to undergo R.I. for 3 months each under Section 323, I.P.C. and Section 342, I.P.C. and six months R.I. under S. 506, Part I, I.P.C. All the sentences are directed to run concurrently.
11. Criminal Revision Case is allowed accordingly.
12. Revision allowed.