Karnataka High Court
Smt Indira S vs State Of Karnataka on 11 October, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL REVISION PETITION NO.84/2014
CONNECTED WITH
CRIMINAL REVISION PETITION
NOS.83/2014,74/2014,75/2014,76/2014,77/2014,
78/2014,79/2014,80/2014,81/2014,82/2014,
72/2014 AND 73/2014
BETWEEN:
Smt. Indira.S
W/o. Suresh K,
Aged about 35 years,
R/at Shantha Nivas,
Keerthi Nagar, Kukkude,
Haradi Graama,
Udupi Taluk - 576213 ... Petitioner
(Common)
(By Sri. Jagadeesha B.N., Advocate)
AND:
State of Karnataka,
Rep by Public Prosecutor,
High Court Building,
Bengaluru - 560 001. ...Respondent
(Common)
(By Sri.M.Diwakar Maddur, HCGP)
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This Criminal Revision Petition No.84/2014 is
filed under Section 397 and 401 of Cr.P.C., praying to set
aside the order dated 04.12.2013 passed by the Principal
Sessions Judge, Udupi in Crl.A.No.228/2008 and direct
that the petitioner be acquitted of the offences alleged and
charged against her.
This Criminal Revision Petition No.83/2014 is
filed under Section 397 and 401 of Cr.P.C., praying to set
aside the order dated 04.12.2013 passed by the Principal
Sessions Judge, Udupi in Crl.A.No.227/2008 and direct
that the petitioner be acquitted of the offences alleged and
charged against her.
This Criminal Revision Petition No.74/2014 is
filed under Section 397 and 401 of Cr.P.C., praying to set
aside the order dated 03.12.2013 passed by the Principal
Sessions Judge, Udupi in Crl.A.No.218/2008 and direct
that the petitioner be acquitted of the offences alleged and
charged against her.
This Criminal Revision Petition No.75/2014 is
filed under Section 397 and 401 of Cr.P.C., praying to set
aside the order dated 30.11.2013 passed by the Principal
Sessions Judge, Udupi in Crl.A.No.219/2008 and direct
that the petitioner be acquitted of the offences alleged and
charged against her.
This Criminal Revision Petition No.76/2014 is
filed under Section 397 and 401 of Cr.P.C., praying to set
aside the order dated 03.12.2013 passed by the Principal
Sessions Judge, Udupi in Crl.A.No. 220/2008 and direct
that the petitioner be acquitted of the offences alleged and
charged against her.
This Criminal Revision Petition No.77/2014 is
filed under Section 397 and 401 of Cr.P.C., praying to set
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aside the order dated 03.12.2013 passed by the Principal
Sessions Judge, Udupi in Crl.A.No.221/2008 and direct
that the petitioner be acquitted of the offences alleged and
charged against her.
This Criminal Revision Petition No.78/2014 is
filed under Section 397 and 401 of Cr.P.C., praying to set
aside the sentence dated 30.11.2013 passed by the
Principal Sessions Judge, Udupi in Crl.A.No.222/2008.
This Criminal Revision Petition No.79/2014 is
filed under Section 397 and 401 of Cr.P.C., praying to set
aside the sentence dated 02.12.2013 passed by the
Principal Sessions Judge, Udupi in Crl.A.No.223/2008
and direct that the petitioner be acquitted of the offences
alleged and charged against her.
This Criminal Revision Petition No.80/2014 is
filed under Section 397 and 401 of Cr.P.C., praying to set
aside the sentence dated 02.12.2013 passed by the
Principal Sessions Judge, Udupi in Crl.A.No.224/2008
and direct that the petitioner be acquitted of the offences
alleged and charged against her.
This Criminal Revision Petition No.81/2014 is
filed under Section 397 and 401 of Cr.P.C., praying to set
aside the sentence dated 30.11.2013 passed by the
Principal Sessions Judge, Udupi in Crl.A.No.225/2008
and direct that the petitioner be acquitted of the offences
alleged and charged against her.
This Criminal Revision Petition No.82/2014 is
filed under Section 397 and 401 of Cr.P.C., praying to set
aside the sentence dated 30.11.2013 passed by the
Principal Sessions Judge, Udupi in Crl.A.No.226/2008
and direct that the petitioner be acquitted of the offences
alleged and charged against her.
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This Criminal Revision Petition No.72/2014 is
filed under Section 397 and 401 of Cr.P.C., praying to set
aside the sentence dated 30.11.2013 passed by the
Principal Sessions Judge, Udupi in Crl.A.No.216/2008
and direct that the petitioner be acquitted of the offences
alleged and charged against her.
This Criminal Revision Petition No.73/2014 is
filed under Section 397 and 401 of Cr.P.C., praying to set
aside the sentence dated 30.11.2013 passed by the
Principal Sessions Judge, Udupi in Crl.A.No.217/2008
and direct that the petitioner be acquitted of the offences
alleged and charged against her.
These Criminal Revision Petitions coming on for
Admission, this day, the Court made the following:
ORDER
These criminal revision petitions have been filed by the petitioner-accused being aggrieved by the order dated 04.12.2013 passed by the Prl. Sessions Judge, Udupi in Criminal appeal Nos.177 and 228 of 2008 dismissing the appeals by the order dated 31.01.2008 passed by the Additional Civil Judge & JMFC., Udupi in C.C.No.37/2005.
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2. I have heard the learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State.
3. The brief facts of the case are that the petitioner-accused was working as a Gramin Dok Sevak Sub-Post Master of Extra Departmental Sub Post Office (Postal Department) at Salikeri, Haradi Village, Udupi Taluk. CW 2 Balakrishna S/o.B.H.Naik had deposited Rs.300/- per month from 10.07.2000 to 03.12.2001 in a total sum of Rs.5,400/- in his R.D.Account No.353255, CW 3 Mahabala Poojary has deposited Rs.300/- per month from 05-01-2000 to 28.02.2001 in a total sum of Rs.3,000/- to his R.D.Account No.353255 and CW.4 Srikantha Pai has deposited Rs.500/- per month from 29.10.1998 till December 2001 in a total sum of Rs.19,500/- to his R.D.Account No.353209 and that accused has received the entire amount by making entries in the respective pass books and she has not credited the 6 amount to the department, when the departmental officer had come to know about the fraud committed by the accused, in receipt of the amount received from the public. Subsequently, the account holder came to know that she has made entries in the pass books and has not credited the amount and cheated the postal department. On the basis of the complaint a case was registered under Sections 406, 409, 468 and 420 of IPC. After the trial court had convicted the petitioner-accused for the alleged offences challenging the same the petitioner-accused preferred the appeal. The First Appellate Court through the impugned order dismissed the appeal preferred by the petitioner-accused and allowed the criminal appeal filed by the State and by virtue of the said order the benefit was extended under Section 4 of the Probation of Offenders Act has been set aside, assailing the same the petitioner- accused is before this Court.
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4. It is the contention of the learned counsel for the petitioner, that the petitioner-accused has been given the benefit of the Probation of Offenders Act. When the court below has already given the benefit, the First Appellate Court ought not to have interfered with the said order, after a long gap of 5 years, 10 months. In order to substantiate the said contention, he relied upon the decision in the case of STATE OF GUJARAT vs. V.A.CHAUHAN reported in (1983) 2 SCC 64. He further submitted that the petitioner-accused is a lady and after the initiation of the proceedings, she has deposited the full amount and even she has been terminated from the service by holding departmental enquiry. He further submitted that if the said order is set aside then under such circumstances the petitioner-accused is going to be affected and the very object of the order passed by the court below is going to be defeated. He further submitted that there were no other antecedents except the one which has been tried by the court below. He further submitted 8 that the object of the Probation of Offenders Act 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. He further submits that the petitioner-accused is having a daughter to be given in marriage and if she is sent to the jail without adjudicating the corrective measures, under such circumstances, prejudice may be caused to the petitioner-accused. He further submitted that the court below has not assigned any cogent and acceptable reasons at the time when it has come to the conclusion the benefit of Probation of Offenders Act cannot be extended. If no cogent and acceptable reasons are stated, then under such circumstances the order of the First Appellate Court will 9 deprive the benefit and the petitioner-accused is going to be put to irreparable loss. In order to substantiate his contentions he relied upon the decision in the case of RAMNARESH PANDEY vs. THE STATE OF MADHYA PRADESH reported in (1974) 3 SCC 380. He further submitted that the court below, after considering the material regarding the social documents and personal factors of the offender for the purpose of sentencing has extended the benefit. Once the benefit has been extended under the Probation of Offenders Act and a long period of litigation and a little period of imprisonment suffered will serve the deterrent and if the benefit is given under the Probation of Offenders Act, then the petitioner-accused will be entering into the execution of bond for good conduct and good behaviour.
5. He further submitted that the benefit of the Probation of Offenders Act has to be exercised in peculiar facts and circumstances of the case. By relying upon the 10 decision in the case of STATE OF KARNATAKA vs. SRIRIYAPPA ALIAS SREE RAMA reported in (1995) Cri LJ 2304 submitted that once the benefit of Probation of Offenders Act has been extended, then the above period is also over long back. With the lapse of period of 8 years from the date of commission of offences, it would be unfair to send back the matter for imposing sentence of substantive prison term against the respondent. Under these circumstances, the order of First Appellate Court is not sustainable in law. On these grounds he prays to allow these petitions and set aside the impugned order.
6. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the provisions of Probation of Offenders Act clearly goes to show that the benefit of Probation of Offenders Act cannot be given to a accused person who has been convicted for a offence punishable with imprisonment of life. Further by drawing the attention of the court to Section-6 submitted 11 that the petitioner-accused is 43 years and it restrict to extend the benefit up to 21 years. He further submitted that the object of the Probation of Offenders 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. In the instant case the First Appellate Court after considering the said facts has rightly come to the conclusion that the benefit extended by the court below is not agreed and as such the same has been set aside and the petitioner-accused has not made out any good grounds to allow the petition and to interfere with the order of the court below. On these grounds he prays to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and I have gone through the decision of the Hon'ble Apex Court quoted by the learned counsel for the 12 petitioner-accused and I have also gone through the orders of the trial court as well as the First Appellate Court.
8. In so far as with the case for having convicted the petitioner-accused under Section 406 and 409 of IPC is concerned there is a material to show that the petitioner-accused has committed the offences and even the trial court has also rightly appreciated the evidence and have come to right conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt, even the First Appellate Court has also re-appreciated the evidence and has come to the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Even on re-appreciation of the evidence there is sufficient material to show that accused has committed the alleged offence. Even it is not the case of the accused-petitioner that there is no material to convict the accused. The only contention 13 which the learned counsel for the petitioner-accused has urged in these cases are that the court below has already extended the benefit of Probation of Offenders Act and there is a lapse of time and under such circumstances after so many years the First Appellate Court ought not to have taken out the benefit which has been already extended by the court below.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties.
10(A). For the purpose of brevity, I quote the case of STATE OF GUJARAT vs. V.A.CHAUHAN (supra) that wherein it has been observed as under:-
"In this case the only point involved is as to whether the provisions of Probation of Offenders Act would apply to the present case where the respondent was convicted under Sections 409,467 and 471, IPC and Section 5(1) (c) read with Section 5(2) of the Prevention of Food Adulteration [sic Corruption] Act. The High Court gave the benefit of the Probation of Offenders Act to 14 the accused and since last six years the respondent is enjoying this benefit. The matter seems to be concluded by the decision of the Court in Som Nath Puri vs. State of Rajasthan 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. The appeal is accordingly dismissed."
(B). So also in the case of RAM NARESH PANDEY vs. THE STATE OF MADHYA PRADESH quoted supra at paragraph 4 which has been observed as under:-
"4. 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. We accordingly accept the appeal, set aside the judgment of the High Court and direct that the appellant should be released on probation of good conduct 15 under Section 4 of the Probation of Offenders Act as directed by the trial Court."
(C). In the case of STATE OF KARNATAKA vs. SRIRIYAPPA ALIAS SREE RAMA quoted supra at paragraph 8 which has been observed as under:-
"8. In the case on hand, the respondent was alleged to have committed the offence on 30.07.1987. He was found guilty by the learned Magistrate by order dated 30.09.1988. The learned sessions Judge by his judgment dated 15.12.1990 extended the benefit of Section 4 of the Act and the bond was taken for a period of two years from 03-10-1987. The bond period is also over long back. With the lapse of period of eight years from the date of commission of the offence it would be unfair to send back the matter for imposing sentence of substantive prison term against the respondent and having regard to all these circumstances with the observation that the view taken by the learned sessions Judge is contrary to law and unsustainable, revision petition is disposed of."
11. On going through the said proposition of law laid down by the Hon'ble Apex Court, one point has been made it clear that, in the case of SOM NATH PURI vs. THE STATE OF RAJASTHAN reported in (1972) 1 SCC 16 630 the benefit of Probation of Offenders Act cannot be given to an accused convicted to a offence punishable with imprisonment of life. I am also not having any difference of opinion with regard to the said proposition of law. The only point which arises for consideration is not of the above said decision that which has already been observed that once the benefit of Probation of Offenders Act, if it has been extended and if the benefit has been made use by the accused, whether the First Appellate Court is justified in revoking the said order and order the petitioner-accused to be sent to prison.
12. Before going to discuss the contentions, it is held by the Hon'ble Apex Court in the case of STATE THROUGH CENTRAL BUREAU OF INVESTIGATION ANTI CORRUPTION BRANCH, CHANDIGARH VS. SANJIV BHALLA AND ANOTHER reported in (2015) 13 SCC 444 at para 12 it has been observed as under:
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"12. In Ved Prakash v. State of Haryana this Court observed that: (SCC p.448, para 1) "1. ... [I]t is the duty of the sentencing court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitation slant".
A little later in the judgment, it was held that:
(SCC p.448, para 1) "1. [E]ven if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of Offenders Act."
In other words, this Court was of the view that punishment should be rehabilitative and humanising and, therefore, need not necessarily be retributive in character."
On going through the above decision it shows that court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitation slant. The benefit can be extended depending upon fact and circumstances of the case. It is further observed in Para 24 which reads as under:
"24. These decisions indicate that the philosophical basis of our criminal jurisprudence is undergoing a shift-from punishment being a humanising mission to punishment being 18 deterrent and retributive. This shift may be necessary in today's social context (though no opinion is expressed), but given the legislative mandate of Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act, what is imperative for the Judge is to strike a fine balance between releasing a convict after admonition or on probation or putting such a convict in jail. This can be decided only on a case by case basis but the principle of rehabilitation and the humanising mission must not be forgotten."
On going through above para, it makes it clear that Judge has to strike balance between releasing a convict after admonition or on probation depending upon case to case. But rehabilitation and the humanising mission must not be forgotten. Keeping the above said aspect, let me consider the case on hand.
13. Admittedly, the case was registered in the year 2002 and thereafter the trial was conducted and the petitioner-accused was convicted for the alleged offence by order dated 31.01.2008 and at that time the benefit of Probation of Offenders Act has been extended and subsequently, the First Appellate Court heard the matter 19 and disposed of the case on 04.12.2013, i.e., after 5 years after the disposal of the case by the trial court. The present revision petitions are now heard in the year 2018, after ten years of the order of the trial Court.
14. Taking into consideration the above facts and circumstances, I am of the considered opinion that the court below has exercised the power under Section 4 of the Probation of Offenders Act and after lapse of period of nearly 16 years from the date of commission of the offence, it would be unfair to again send back the matter to the court below to consider the aspect and send back the petitioner-accused to the jail. Even the Hon'ble Apex Court in the decision quoted (supra) has observed that in the interest of justice, in order to interfere with the order of exercising the power, it has been exercised by giving cogent and sustainable grounds. As it could be seen from the order of the First Appellate Court no doubt the First Appellate Court has relied upon the decision of STATE OF 20 GUJARAT vs. V.A.CHAUHAN quoted (supra) and has come to the conclusion that the benefit of Probation of Offenders Act cannot be extended and in that light the benefit given under Section 4 of the Act has been set aside. On close reading of the said order though the Hon'ble Apex Court has come to the conclusion that the benefit of Probation of Offenders Act cannot be given to a accused person who has been convicted for a offence punishable with imprisonment of life. But, under the peculiar facts and circumstances of the case it has been observed that the respondent has already given the benefit of the act which cannot be revoked at this particular stage. The same observations gives the benefit to the petitioner-accused in this case also.
15. It is held by the Hon'ble Apex Court in the case of MOHD. HASHIM VS. STATE OF UTTAR PRADESH AND OTHERS reported in (2017) 2 SCC 198 at para 22 to 25, it has been observed as under:
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"22. We have referred to the aforesaid authority to stress the point that the court before exercising the power under Section 4 of the PO Act has to keep in view the nature of offence and the conditions incorporated under Section 4 of the PO Act. Be it stated in Dalbir Singh v. State of Haryana it has been held that Parliament has made it clear that only if the Court forms the opinion that it is expedient to release the convict on probation for the good conduct regard being had to the circumstances of the case and one of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence". The Court has further opined that though the discretion has been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient. Explaining the word "expedient", the Court held thus: (SCC p.86, paras 9-10) "9. ... The word "expedient" had been thoughtfully employed by Parliament in the section so as to mean it as "apt and suitable to the end in view". In Black's Law Dictionary the word "expedient" is defined as "suitable and appropriate for accomplishment of a specified object" besides the other meaning referred to earlier. In State of Gujarat v. Jamnadas G. Pabri a two-Judge Bench of this Court has considered the word "expedient". The learned Judges have observed in para 21 thus: (SCC p.145) '21. ... Again, the word "expedient" used in this provision, has several shades of 22 meaning. In one dictionary sense, "expedient"
(adj.) means "apt and suitable to the end in view", "practical and efficient"; "politic";
"profitable"; "advisable", "fit, proper and suitable to the circumstances of the case". In another shade, it means a device "characterised by mere utility rather than principle, conducive to special advantage rather than to what is universally right" (see Webster's New International Dictionary)'.
10. It was then held that the court must construe the said word in keeping with the context and object of the provision in its widest amplitude. Here the word "expedient" is used in Section 4 of the PO Act in the context of casting a duty on the court to take into account "the circumstances of the case including the nature of the offence...". This means Section 4 can be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct."
23. We have highlighted these aspects for the guidance of the appellate court as it has exercised the jurisdiction in a perfunctory manner and we are obligated to say that the High court should have been well advised to rectify the error.
24. At this juncture, the learned counsel for the respondents would submit that no arguments on merits were advanced before the 23 appellate court except seeking release under the PO Act. We have made it clear that there is no minimum sentence, and hence, the provisions of the PO Act would apply. We have also opined that the court has to be guided by the provisions of the PO Act and the precedents of this Court. Regard being had to the facts and circumstances in entirety, we are also inclined to accept the submission of the learned counsel for the respondents that it will be open for them to raise all points before the appellate court on merits including seeking release under the PO Act.
25. Resultantly, the appeal is allowed, the judgment and order passed by the High Court and the appellate court are set aside and the matter is remitted to the appellate court for disposal in accordance with law."
On going through the above aspect, it makes clear that while executing, lower court has to keep in mind the nature of offences and the Act as well as precedents of the Hon'ble Supreme Court on the subject.
16. In that light of the observations made by the Hon'ble Apex Court, I am also of the view that the benefit ought to have been given by the First Appellate Court. As could be seen from the order, no reasons has been 24 assigned to set aside the impugned order. In the light of the decision of the Apex Court, these petitions are allowed and the order of the court below in so far as conviction is concerned, the same has to be confirmed. But the benefit given under Section 4 of the Probation of Offenders Act, which has been set aside by the first appellate court and the same benefit is extended to the petitioner-accused as per order of the trial Court.
Hence, all these petitions are allowed in part as observed above.
Consequently, applications for suspension of sentence filed in these appeals are dismissed as they do not survive for consideration.
Sd/-
JUDGE KPS