Punjab-Haryana High Court
Om Pal vs The State Of Ut Chandigarh on 19 October, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRR No.53 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR No.53 of 2012 (O&M)
Date of Decision: 19.10.2012
Om Pal ...Petitioner
Versus
The State of UT Chandigarh ...Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.H.S.Bhullar, Advocate for the petitioner.
Mr.J.S.Toor, Advocate for the respondent.
Mehinder Singh Sullar, J. (Oral)
Tersely, the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, are that, one Om Pal son of Makru Ram was selected as a Sweeper in the year 1987, through Employment Exchange in the office of Health Department. It was claimed that although the name of petitioner-convict Om Pal son of Nakli Ram was never registered in the Employment Exchange, but he managed to secure the job in place of Om Pal son of Makru Ram, in connivance with the officials of Employment Exchange and Health Department. In the background of these allegations and in the wake of enquiry, a criminal case was registered against the petitioner-convict, by virtue of FIR No.1 dated 21.2.1990, on accusation of having committed the offences punishable under sections 420, 468 and 471 IPC by the police of Police Station Vigilance, Chandigarh.
CRR No.53 of 2012 (O&M) 2
2. Having completed all the codal formalities and taking into consideration the evidence on record, the petitioner-convict was convicted & sentenced to undergo rigorous imprisonment for a period of three years each, to pay a fine of ` 1000/- each and in default of payment of fine, to undergo further RI for a period of four days each, under sections 420, 468 and 471 IPC. However, all the substantive sentences were ordered to run concurrently by the Trial Court, by way of impugned judgment of conviction & order of sentence dated 10.3.2007.
3. Aggrieved thereby, the appeal filed by the petitioner-convict was partly accepted and the conviction & sentence under section 468 IPC were set aside. However, the conviction & sentence u/ss 420 and 471 IPC were maintained by the appellate Court, by means of impugned judgment dated 19.12.2011.
4. The petitioner-convict still did not feel satisfied and preferred the present revision petition to challenge the impugned judgments of conviction & orders of sentence, invoking the provisions of section 401 Cr.PC.
5. After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant revision petition, as regards the conviction of petitioner-convict is concerned.
6. As is evident from the record that during the course of preliminary hearing, as the learned counsel for petitioner-convict did not assail the judgments of conviction and only prayed for reduction in sentence, therefore, the following order was passed on 6.1.2012 by a CRR No.53 of 2012 (O&M) 3 Coordinate Bench of this Court (Rakesh Kumar Garg, J.):-
"Counsel for the petitioner has argued only with regard to the quantum of sentence on the ground that 20 years have already elapsed from the date of registration of FIR and the petitioner has already faced the agony of prosecution.
Notice regarding quantum of sentence for 28.2.2012."
7. In this regard, the learned counsel has contended with some amount of vehemence that in the instant case, the punishment u/s 471 IPC would be two years for committing forgery under the present set of circumstances. The petitioner-convict is a first offender and the Courts below did not record any cogent reasons to negate his plea to release him on probation. He prayed that the petitioner-convict is entitled to the benefit of probation. In support of his contention, he has placed reliance on the judgment of Hon'ble Apex Court in case N.M.Parthasarthy v. State of S.P.E. 1992(1) RCR (Criminal) 555. The learned State counsel has acknowledged the factual matrix of the case and legal position.
8. Above being the position on record, now the short & significant question, though important, that arises for determination is, as to whether the petitioner-convict is entitled to the benefit of probation or not ?
9. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the affirmative.
10. At the very outset, what cannot possibly be disputed here is that the object underlying the provisions of sections 4 and 6 of the Probation of Offenders Act, 1958 (for brevity "the Probation Act") and sections 360 & 361 Cr.PC, broadly speaking, is that first offenders be not CRR No.53 of 2012 (O&M) 4 sent to jail for the commission of less serious offences, on account of grave risk to their attitude to life to which they are likely to be exposed as a result of their association with the hardened and habitual criminal inmates of the jail. Their stay in jail in such circumstances might well attract them towards a life of crime instead of reforming them. This would clearly make more harm than to reform them, and for that reason, it would perhaps also be to an extent prejudicial to the larger interests of the society as a whole. Perhaps that was the reason that the mandatory injunction against imposition of sentence of imprisonment has been embodied in Section 6 of the Probation Act. This mandate is inspired by the desire to keep the young delinquent/first offenders away from the possibility of association or close contact with hardened criminals and their evil influence. Therefore, these beneficial provisions have to be liberally construed.
11. As is amply clear that Section 360 Cr.P.C. deals with order to release the accused on probation of good conduct or after admonition, whereas Section 361 Cr.P.C. posits that "where in any case the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation Act, but has not done so, it shall record in its judgment the special reasons for not having done so."
12. Sequelly, Section 4 of the Probation Act postulates that when any person is found guilty of having committed an offence not punishable with death or imprisonment for life 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 CRR No.53 of 2012 (O&M) 5 offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour.
13. The combined and meaningful reading of these provisions would reveal that non obstante clause contained in Section 4 points to the conclusions that the provisions of this Section would have overriding effect, shall prevail if the conditions depicted therein are fulfilled and the benefit of probation should be granted to the petitioner-convict under such circumstances. Meaning thereby, the petitioner-convict is entitled to the concession of probation.
14. Having regard to the antecedents and other relatable factors, to me, it would be expedient in the interest and justice would be sub- served, if the benefit of probation is granted to the petitioner-convict, inter alia on the following grounds:
i) It is not a matter of dispute that the occurrence in this case is stated to be of 24.2.1987 and after enquiry, ultimately, the case was registered against the petitioner-convict on 21.2.1990. In this manner, he has already faced the pangs and suffered the agony of protracted trial, appeal & revision for the last more than 22½ years.
ii) As per custody certificate, he has already undergone the period of his substantive sentence of ten months.
iii)The trial Court noticed that the petitioner-convict is sole bread earner of his family.CRR No.53 of 2012 (O&M) 6
iv)He is a first offender and there is no history of his previous conviction.
v) The antecedent and credentials of the petitioner-convict are such that he has not been found involved in any other case.
vi)There is no legal impediment to release the petitioner-convict on probation.
vii)Even the modern trend of penology also leans towards the reformation of the offenders, so as to make them a useful citizen of the society. No useful purpose was going to be achieved by again sending the petitioner-convict to jail.
15. Therefore, taking into consideration the period of agony of protracted trial, appeal, revision, antecedents of petitioner-convict, nature of offence, totality of other facts & circumstances emanating from the record, as discussed here-in-above, to my mind, no useful purpose would be served in again sending him to jail to serve out the remaining period of sentence and instead of sending him to prison, he be released on probation under the present set of circumstances. Consequently, it is directed that petitioner-convict be released on probation on his furnishing personal bonds (within two months) in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the conditions that he would keep the peace and be of good behaviour, for a period of two years from the date of passing of this order. However, he is further directed to deposit a sum of ` 5000/- as costs of proceedings within a period of three months in the trial Court, as contemplated under section 5(1)(b) of the Probation Act. Needless to mention that in case, he is found to be indulged in any illegal activities and fails to deposit the costs of proceedings, the sentence awarded to him by the appellate Court shall stand revived. The remaining sentence of fine imposed on the CRR No.53 of 2012 (O&M) 7 petitioner-convict by the Courts below is hereby maintained.
16. In the light of aforesaid reasons, the instant revision petition is hereby dismissed on merits and the impugned judgments of conviction & order of sentence of fine are maintained. However, the order of sentence is accordingly modified to the extent and in the manner depicted herein above.
17. Needless to mention that natural consequences & compliance will follow accordingly.
19.10.2012 (Mehinder Singh Sullar) AS Judge