Delhi District Court
Yusuf Ali vs State ( Wild Life Department ) on 15 February, 2011
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IN THE COURT OF SH. O. P. GUPTA, ADDITIONAL SESSIONS JUDGE - 02,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Criminal Revision No. 07/2011
Yusuf Ali
R/o H. No. 26, Shahi Masjid,
Rashid Market, Main Patpar Ganj Road,
Opposite Geeta Colony,
Delhi-110051 ....Petitioner
Versus
State ( Wild Life Department ) ....Respondent
Date of Institution : 25.01.2011
Arguments heard on : 15.02.2011
Judgment Announced on ; 15.02.2011
JUDGMENT
1. This order will dispose of revision filed by convict against order dated 22.7.2010 passed by Ld. ACMM dismissing his application for probation u/s 360 Cr. P.C. read with section 4 Probation of Offenders Act.
2. The revision has been filed on 24.1.2011 and there is delay of 92 days in filing the same. There is an application for condonation of delay on the ground that petitioner is only earning hand in the family and there is no one to take care of the family, leave aside pursuing the case and engaging counsel. To my mind the same does not constitute any ground for condonation of delay. The application for condonation is dismissed. Revision is liable to be dismissed on the ground of being barred by limitation.
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3. Even on merits I do not find any ground to interfere. The appellant was convicted u/s 44, 49 and 51 of Wild Life Protection Act vide judgment dated 14.5.09 passed by Ld. ACMM. He preferred appeal which was dismissed by Ld. ASJ. The criminal revision no. 331/10 preferred by petitioner was dismissed as withdrawn vide order dated 15.7.10 passed by Hon'ble High Court. However liberty to make appropriate application before proper forum for seeking probation was given.
4. It is in pursuance of said liberty that the petitioner moved an application for probation before Ld. ACMM. The same was dismissed on dual ground. One was that allowing application would amount to reviewing the order passed by appellate court and the other was since Wild Life Protection Act provides minimum sentence, probation is not permissible.
5. I have gone through the material on record and heard the arguments.
The counsel for the petitioner submitted that grant of probation would not have amounted to review because the conviction was not being challenged or set-aside. I am unable to appreciate the arguments. Probation has already been declined in the original order of sentence. The same has merged in the order of appellate court and the judicial propriety did not permit the Ld. Trial Court to grant probation after its order has merged in the order of Ld. Appellate Court.
6. The counsel for the petitioner relied upon Magh Singh Vs State of 3 Rajasthan 1983 Crimes 311 in which convict for offence under Rajasthan Excise Act was released on probation. The same refers to Somali Vs State of Rajasthan decided on 8.9.1980 and Jagta Ram Vs State of Rajasthan 1981 RCC 1. In those cases it was held that mere fact that minimum sentence is prescribed, is not sufficient to refuse benefit of probation of Offenders Act or exclude section 360 Cr. P.C. In that case the Hon'ble High Court granted benefit in criminal revision against order passed by Ld. ASJ maintaining conviction and sentence.
7. The counsel for the petitioner also relied upon full bench decision of Punjab and Haryana High Court in Joginder Singh Vs State of Punjab 82 (1980) PLR 585 to make out that prescription of minimum sentence is no bar for probation. He has submitted that petitioner has four children to maintain eldest of whom is aged 14 years, the petitioner has already suffered imprisonment for eight months.
8. In Superintendent Central Excise Vs Bahubali 1979 (2) SCC 279 it was held that in case under an Act enacted after the Probation Act where a minimum sentence is prescribed, provisions of Probation Act cannot be invoked. If a Special Act which does not contain any provision for probation, in derogation of the special enactment there is no scope for extending benefit of Probation Act. Similar view was taken in State Vs Rattan Lal Arora 2004 (4) SCC 590 and State Vs Amar Singh AIR 2005 Supreme Court 3818. Dayal Singh Vs 4 State AIR 2004 Supreme Court 2608 and Mahinder Kumar G Patel Vs State of Gujarat AIR 2003 SC 4058 also lay down the same preposition of law. Jagdish Prasad Vs State AIR 1999 SC 1539, State of AP Vs S.R. Rangadamappa AIR 1982 Supreme Court 1492, State of J & K Vs Vinay Nand 2001 (2) SCC 504, State Vs A Parthiban AIR 2007 Supreme Court 51 also took the similar view.
9. Keeping in view the latest judicial trend I do not find any infirmity in the order of Ld. ACMM. The revision is dismissed. Copy of the order be sent to Ld. Trial Court. File be consigned to Record Room.
Announced in the open Court (O.P. GUPTA)
on 15.02.2011 Additional Sessions Judge-02
Central District, Tis Hazari Courts,
Delhi