Punjab-Haryana High Court
Madan Singh vs State Of Punjab And Ors on 26 September, 2012
Crl. Revision No.885 of 2012
1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Crl. Revision No.885 of 2012(O&M)
Date of decision:26.09.2012
Madan Singh ... Petitioner
versus
State of Punjab and ors. ... Respondents
CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. Arun Takhi, Advocate for the petitioner.
Mr. K.D. Sachdeva, Addl.AG, Punjab
Mr. J.B.S. Gill, Advocate for respondents no.2 to 4.
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VIJENDER SINGH MALIK, J.
Madan Singh, the petitioner has brought this revision petition under the provisions of section 401 Cr.P.C. against the judgment dated 13.12.2011 passed by learned Additional Sessions Judge, Hoshiarpur whereby benefit of probation was extended to Bashir Ram, Balbir Singh and Surinder Pal @ Kaka, in an appeal preferred by them against the judgment of their conviction recorded by learned Judicial Magistrate Ist Class, Hoshiarpur in a case registered by way of FIR No.123 dated 10.09.1998 at Police Station Hariana, for an offence punishable under sections 148, 323, 452 and 506 read with section 149 IPC. Crl. Revision No.885 of 2012 2
On 06.09.1998 at about 8.00 PM, the above named three persons opened attack on the complainant Madan Singh and his nephew Amrik Chand while they were taking meal. The above said persons were accompanied by some other persons. They entered the house of Madan Singh. While Bashir Ram raised lalkara to teach them a lesson, Raj Pal and others opened attack, which resulted in injuries to Madan Lal and Amrik Chand.
On due investigation, challan was submitted against the above named three persons and others, for an offence punishable under sections 148, 323, 452 and 506 read with section 149 IPC.
After the due trial, learned Judicial Magistrate Ist Class, Hoshiarpur held Bashir Ram, Balbir Singh and Surinder Pal @ Kaka guilty for the offence punishable under sections 452 and 323 read with section 34 IPC, vide judgment dated 04.10.2006. Vide order of the same date, the following sentences were awarded to those persons:-
Name of the Section(s) Sentence convicts. Bashir Ram, 452 IPC Rigorous imprisonment for one year Balbir Singh and to pay a fine of Rs.200 each. In and Surinder Pal default of payment of fine, they shall further undergo for a period of one month each. Bashir Ram, 323 read with Rigorous imprisonment for a period Balbir Singh section 34 IPC of six months each. and Surinder Pal
Needless to say that Raj Pal, Kashmiri Lal, Surjit Ram, Parkash Kaur, Resham Kaur, Harvinder Kumar @ Kaku, Kulwinder Kumar @ Mintu had been acquitted of the charge.
Crl. Revision No.885 of 20123
In the appeal preferred by the three convicts, learned counsel representing them did not challenge the judgment of their conviction and had requested for taking lenient view in the matter of sentence. Vide judgment dated 13.12.2011, learned Additional Sessions Judge, Hoshiarpur had upheld the conviction of all the three convicts and had set aside the order on quantum of sentence and ordered release of the convicts on probation on their furnishing personal bonds in a sum of Rs.20,000/- each to the satisfaction of learned trial court subject to certain conditions.
I have heard Mr. Arun Takhi, learned counsel for the petitioner, Mr. K.D. Sachdeva, learned Additional Advocate General, Punjab for respondent-State and Mr. J.B.S. Gill, learned counsel for respondents no.2 to 4 at length and have gone through the record carefully.
Learned counsel for the petitioner has contended that the judgment setting aside the order on sentence and releasing respondents no.2 to 4 on probation is bad. According to him, it violates the mandatory provisions of section 4(2) of the Probation of Offenders Act, 1958 under which calling of report of Probation Officer before extending the relief of probation of good conduct is a must. He has placed reliance on a decision of Hon'ble Supreme Court of India in M.C.D. v. State of Delhi and another 2005(3) RCR (Criminal) 13 where it is laid down as under:-
"20. We have already reproduced section 4 of the Probation of Offenders Act. It applied to all kinds of offenders whether under or above 21 years of age. This section is intended to attempt possible reformation of an offender instead of Crl. Revision No.885 of 2012 4 inflicting on him the normal punishment of his crime. The only limitation imposed by section 6 is that in the first instance an offender under twenty one years of age, will not be sentenced to imprisonment. While extending benefit of this case, the discretion of the court has to be exercised having regard to the circumstances in which the crime was committed, the age, character and antecedents of the offender. Such exercise of discretion needs a sense of responsibility. The offender can only be released on probation of good conduct under this section when the court forms an opinion, having considered the circumstances of the case, the nature of the offence and the character of the offender, that in a particular case, the offender should be released on probation of good conduct. The section itself is clear that before applying the section, the Magistrate should carefully take into consideration the attendant circumstances. The second respondent is a previous convict as per the records placed before us. Such a previous convict cannot be released in view of section 4 of the Probation of Offenders Act. The court is bound to call for a report as per section 4 of the Probation of Offenders Act but the High Court has failed to do so although the Court is not bound by the report of the Probationer Officer but it must call for such a report before the case comes to its conclusion. The word "shall" in sub-section (2) of Section 4 is mandatory and the consideration of the report of the Probationer Officer is a condition precedent to the release of the accused as reported in the case of State v. Naguesh G. Shet Govenkar and another, AIR 1970 Goa 49 and a release without such a report would , therefore, be illegal."
Learned counsel for the petitioner has further submitted that learned Additional Sessions Judge, Hoshiarpur has taken into account some fact which is not available on the record. According to him, there was no Crl. Revision No.885 of 2012 5 compromise between the parties and learned Additional Sessions Judge,Hoshiarpur has been wrong in considering the fact of compromise between the parties for extending the benefit of the Probation of Offenders Act.
Learned State counsel, on the other hand, has submitted that calling of the report of the Probation Officer is not mandatory for extending the benefit of the Probation of Offenders Act. According to him, the words "shall take into consideration the report, if any," mentioned in section 4(2) of the Probation of Offenders Act clearly show that calling of report is discretionary on the part of the court.
Learned counsel for respondents no.2 to 4 has also reiterated the submissions of learned State counsel regarding the nature of the requirement of the report of Probation Officer. He has added that respondents no. 2 to 4 have been facing trial for the last 14 years. According to him, to Bashir Ram only a lalkara is attributed. He has further submitted that there had been a compromise between the parties but the court did not accept the same because the offence punishable under section 452 IPC could not be compounded.
As per the decision of Hon'ble Apex Court in the case cited above, the court is bound to call for a report as per section 4 of the Probation of Offenders Act. It has also been held that even though the court is not bound by the report of Probation Officer, yet it is obliged to call for such a report before the case comes to its conclusion. Crl. Revision No.885 of 2012 6
In the reported case, the material before the court clearly revealed that the offender had previous conviction to his discredit and oblivious of this fact, without calling for a report of Probation Officer, the benefit of probation was extended.
Section 360 Cr.P.C. deals with the circumstances, in which a convict could be released on probation of good conduct or even after admonition. Section 361 Cr.P.C. which requires special reasons to be recorded in the judgment if a case is not dealt with under the provisions of section 360 Cr.P.C. is in the following terms:-
"Section 361 Cr.P.C.:- 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."
Class (a) of section 361 Cr.P.C. as mentioned above clearly shows that accused can be dealt with either under section 360 Cr.P.C. or under the provisions of the Probation of Offenders Act,, 1958. The choice is with the court to deal with a case under the above mentioned provisions.
Nothing is apparent from the judgment of learned Additional Sessions Judge, Hoshiarpur that the benefit of probation has been extended to respondents no.2 to 4 under the provisions of the Probation of Crl. Revision No.885 of 2012 7 Offenders Act, 1958. When it is not mentioned that the benefit is extended under the provisions of the Act ibid, there would be no reason to say that the benefit has not been extended under the provisions of section 360 Cr.P.C.
The language employed in section 360 Cr.P.C. shows that stress is upon making an attempt at reforming a convict. To make it obligatory on the part of the court to deal with a case under section 360 Cr.P.C, it has been clearly mentioned in section 361 Cr.P.C. that if a case is not dealt with section 360 Cr.P.C., the court has to record special reasons for not doing so in its judgment.
Learned counsel for the petitioner could not show any previous conviction on the part of respondents no.2 to 4. He could not also bring to the notice of the court any other depravity in their character, which may show them to be of incorrigible nature, which is required for declining the benefit of probation to these convicts. In these circumstances, I find no infirmity, much less illegality in the approach of learned Additional Sessions Judge, Hoshiarpur in the impugned order granting benefit of probation to respondents no.2 to 4. Consequently the revision petition is dismissed.
September 26, 2012 ( Vijender Singh Malik ) dinesh Judge