Punjab-Haryana High Court
Balbir Singh vs The State Of Punjab on 25 September, 2003
Equivalent citations: 2004CRILJ1864
ORDER M.M. Kumar, J.
1. This petition filed under Section 401 of the Criminal Procedure Code, 1973 challenges the judgment dated 31-5-2003 passed by the learned Sessions Judge, Fatehgarh Sahib. The Sessions Judge has granted benefit of Section 4 of the Probation of Offenders Act, 1958 (for brevity 'the Act') to the petitioner-accused while deciding the appeal filed against the judgment and sentence order dated 20-3-2001 passed by the Judicial Magistrate First Class, Fatehgarh Sahib in Police Challan No. 17 dated 24-1-1994 pertaining to FIR No. 81 dated 6-11-1992 registered under Sections 332/358/148/149 IPC P. S. Bassi Pathana.
2. Brief facts of the case necessary for disposal of the instant petition are that the petitioner alongwith other was convicted of offences punishable under Section 332, IPC read with Sections 149 and 148 by the Judicial Magistrate, 1st Class. He was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/-alongwith one Gurdeep Singh. In default of payment of fine, he was further sentenced to undergo rigourous imprisonment for one month for the offence punishable under Section 332. It is pertinent to mention that the petitioner is working as an S.P.O. in Punjab police and has been selected for appointment as constable. After conviction and sentence, the petitioner filed an appeal before the learned Sessions Judge. Fatehgarh Sahib, who has extended the benefit of Section 4 of the Act on the principal ground that the petitioner is not a previous convict and he is already facing agony of protracted trial since the year 1992. The order of the learned Sessions Judge dated 31-5-2003 reads as under :--
"I have considered the submissions made on behalf of the appellants. Appellants are not a previous convict. They are facing the agony of protracted trial since the year 1992 and have already suffered enough. They are not a previous convict. Therefore, considering the facts and circumstances of the case, the age of the accused and their being the first offence, it is considered expedient to release the appellants on probation of good conduct and, therefore, instead of sentence them at once to any punishment it is directed that they shall be released on their entering into a bond before this Court with a surety of Rs. 5000/- each to appear and receive sentence as and when called upon during a period of six months and in the mean while, to keep peace and be of good behaviour. Sentence of imprisonment imposed upon by the trial Court stands modified while fine imposed upon the accused-appellant shall remain intact.
In terms of aforesaid modification in sentence, this appeal stands dismissed."
3. Mr. R. N. Moudgil, learned counsel for the petitioner has contended that the basic object of granting benefit of Section 4 of the Act to a convict is to remove his disqualification which flows from conviction. According to the learned counsel, the learned Sessions Judge has committed grave error in law by retaining the imposition of fine as sentence because it would result into a disqualification, In this regard, the learned counsel has placed reliance on two judgments of this Court in the case of Bhagwan v. The State of Haryana (1985) 87 Pun LR 649 : (1986 Cri LJ 1860) and Court of its own motion v. Ram Lubhaya ILR (1985) 1 Punj and Har 428 : (1985 Cri LJ 896).
4. Mr. B. S. Sewak, learned State counsel has argued that there is no illegality in the impugned order passed by the learned Sessions Judge because the order of the department, if any, effecting the service of the petitioner consequent upon retaining of fine as a punishment is not a disqualification within the meaning of Section 12. According to the learned counsel, dismissal from Government service consequent upon a conviction has always been held not to be a disqualification in various judgments of the Supreme Court. He has further submitted that a conduct which has led to the conviction of a Government servant can always be subject-matter of disciplinary proceedings by the appointing authority and it cannot be held a disqualification under Section 12 of the Act.
5. After hearing the learned counsel for the parties. I am of the considered view that this petition deserves to be accepted because once the petitioner has been granted benefit of Section 4, then there was no reason to retain the imposition of fine. The basic object of Section 12 appears to be the rehabilitation and reformation of the offender. The aforementioned object of the Act cannot be achieved if the offender is to suffer disqualification attaching to conviction even on being afforded the benefit of Section 4 of the Act. It would be appropriate to refer to Section 12, which reads as under :--
"12. Removal of disqualification attaching to conviction-- Notwithstanding anything contained in any other law. a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law:
Provided that nothing in this section shall apply to a person who, after his release under Section 4, is subsequently sentenced for the original offence."
6. Section 12 start with a non-obstante clause and over-ride the provision of any other law. If the Courts below have found a person to be entitled to the benefit of Section 4 of the Act then all the consequences attached to his conviction would also come to an end and he should not suffer any disqualification. The imposition of fine may be indicative of symbolic conviction but yet it will be improper to leave the shades of conviction while granting the benefit of Section 4 of the Act and at the same time direct the offender to execute a bond for keeping good conduct. This Court in the case titled as Court of its own motion v. Ram Lubhaya, ILR (1985) 1 Pun] and Har 428 : (1985 Cri LJ 896) has observed as under :--
"Further, while releasing the respondent under Section 4 of the Probation of Offenders Act, he could not leave the sentence of fine maintained. The fine in that event had to be remitted to the respondent. Since now he is being acquitted, the fine, if paid by him, would be remitted to him."
7. Similar observation has been made by the Division Bench of this Court in Bhagwan v. State of Haryana (1985) 87 Pun LR 649 : (1986 Cri LJ 1860). The Division Bench following the observation of the Supreme Court in Ishar Dass v. State of Punjab, AIR 1972 SC 1295 : (1972 Cri LJ 874) observed as under :
"We may add here that imposition of fine on a person being dealt with under Sections 4 and 6 of the Act against the policy of the Act as contained in the preamble and objects and reasons of the Act. Probation is a deferred punishment and if the circumstances given in offence is not to be immediately sent to prison. If fine is imposed along with the order of probation and the fine is not paid, the order granting probation is negated. The failure of payment of fine, unless the Court imposing it defers it payment for the conditions prescribed, leads to the immediate operation of the sentence for its default. The indicted person has to go to jail to serve out the sentence awarded for nonpayment of fine. In such a situation. Sections 4 and 6 of the Act cannot be put into operation and the purpose of these provisions is likely to be frustrated. Ishar Dass v. The State of Punjab is an authority for that. The imposition of fine along with the order under Sections 4 and 6 of the Act in one order is inconsistent with the spirit of the Act."
8. For the reasons recorded above, this petition is allowed. The imposition of fine of Rs. 200/- each on three counts is also condoned. However, the aforementioned amount shall be paid by the petitioner to the complainant. The order of the learned Sessions Judge is partially modified and the petition is accordingly allowed in the above terms.