Punjab-Haryana High Court
Rajesh Alias Pappu vs State Of Haryana on 7 September, 1995
Equivalent citations: 1996CRILJ376
Author: Swatanter Kumar
Bench: Swatanter Kumar
ORDER Swatanter Kumar, J.
1. This revision petition is directed against the judgment of the learned Additional Sessions Judge. Gurgaon. dated 5-7-1995. The prosecution challenged Rajesh alias Pappu for the offence under Sections 323 and 324 of Indian Penal Code on the facts that on 21-6-1989 at about 9.00 P.M. Dalip Singh, father of Jagriti. was coming towards his house after answering the call of nature in village Manesar. On the way the petitioner slopped him and abused him, which attracted his daughter Jagrili towards the scene. She saw the petitioner stopping Dalip Singh while being armed with Kasola and was asking him to withdraw the suits which were pending between the parties. Jagriti made noise for help upon which the petitioner hit her with Kasola on her head and also assaulted her on her right hand resulting an injury to the finger of the right-hand. On these facts FIR No. 463 dated 22-6-1989 was registered under Sections 323 & 324 IPC. The petitioner was sent to the Court of Judicial Magistrate 1st Class, Gurgaon to face trial for the said offences.
2. The petitioner was charge-sheeted vide order dated 29-8-1989. Having pleaded not guilty, the petitioner was put to face trial. The learned Magistrate upon completion of the trial and recording the statement of the accused under Section 313 Cr.P.C. slating that he was falsely implicated, disbelieved the version of the accused. However, the petitioner led no evidence in support of his statement.
3. On the basis of the prosecution evidence which had examined three witnesses, the trial Court held the petitioner to be guilty; convicted him and sentenced him to undergo rigorous imprisonment; for six months and to pay a fine of Rs. 500/- for the offence under Section 324 IPC. He was also sentenced to pay a fine of Rs. 500/- under Section 323) IPC. In default of payment of fine, the petitioner was ordered to undergo further imprisonment for one month.
4. This judgment/order of the learned Magistrate was assailed in appeal before the learned Additional Sessions Judge, Gurgaon, who confirmed the same vide his order dated 5-7-1995. It is this order of the learned Additional Sessions Judge which is assailed before this Court in this revision.
5. At the lime of admission the counsel for the petitioner had conceded that he had no case on merits and wanted to argue only on the question of grant of probation to the petitioner. As such vide order dated 17-8-1995 notice was issued by the Court limited for the grant of probation to the petitioner. Thus, in no way. disturbing the decisions of the Courts below on merits. I propose to discuss the question limited to the plea of probation raised before this Court.
6. The counsel for the petitioner submitted that the petitioner was less than 16 years of age at the time of commission of the offence and is now 22 years old. He has already faced the trial for the last more than 7 years. The petitioner has also undergone two months imprisonment awarded to him by the Courts below and has paid the fine. The counsel further submitted that it was at the spur of the moment that the petitioner caused simple injury to the complainant Jagriti and he had no intention to commit any offence. The counsel further argued that the Courts below have given no reason for declining to release the petitioner on probation and did not even call for the report from the Probationary Officer. The learned Magistrate only noticed one fact on these arguments saying that he was not inclined to release the accused on probation as he had given injury to the girl of lender age on the vital part of her body. The same reasoning was adopted by the learned Additional Sessions Judge and he also declined the benefit of Probation of Offenders Act to the accused. It is important to note here that in the meanwhile when the petitioner was on bail he also got married. He is also not a previous convict and there is no material on record to hold that he cannot reform himself and become a better citizen rather than be in the company of hardened criminals in the jail. The Court cannot loose sight of these facts because to consider the plea of probation, in a case where accused is sentenced by the Court, is also one of the duties of the Court. Even if this plea is not raised, the intentions of the legislations, which are based on principles of social reforms, have to be considered by the Courts themselves.
7. The Courts have emphasised that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Courts are required to collect material necessary to award just punishment and also to apply its mind to the facts and circumsstances of the case whether an accused convict can be given the benefit of the provisions of Section 360 Cr.P.C. or the provisions of Probation of Offenders Act. The Supreme Court in the case of Ved Parkash v. State of Haryana, , while emphasising the need of dealing with the offenders in such a manner that he becomes a non-offender, observed as under (Para I):-
"We emphasise this because the legislations which relate to amelioration in punishment have been regarded as "Minor Acts" and. therefore, of liltle consequence. This is a totally wrong approach and even 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."
8. In a very recent case titled as A.P. Raju v. The State of Orissa, 1995 SCC 675. the Supreme Court while dealing with a case of death by rash and negligent driving under Section 304A of the Indian Penal Code, held as under:-
"Taking in view all these factors, in our opinion, the interest of justice would be met if instead of allow sentencing the appellant to serve a term of imprisonment and sending him to prison again, we order his release under Section 360 Criminal Procedure Code on the appellant's entering into a bond with one surety to keep good conduct and be of good behaviour and keep peace for a period of one year from the dale of execution of the bond. We make an order accordingly. The bond shall be executed by the appellant within one month from today before the trial Court. With the above modification of sentence, the appeal is disposed of."
The Courts, therefore, have to draw a balance between the chances of the offender becoming a non-offender and minimising the chances of such an offender repealing commission of such offences on the one hand and, on the other hand, from the accused drawing a premium over the commission of the offence, in the event the accused is granted such benefit. This would depend upon various factors which have been settled by various pronouncements of all Courts and they form kind of guidelines for the Courts to strike this balance.
9. There can be no two opinions that the benefit of Sections 360 and 361 of the Criminal Procedure Code and the provisions of Probation of Offenders Act can neither be granted as a matter of rule nor can be declined as a matter of rule. Each case must be dealt with on its own merits.
10. The counsel for the petitioner has relied upon judgment of the Supreme Court in the case of Hansa v. State of Punjab, AIR 1977 SSC 1991 : (1977 Cri LJ 1601), where the Supreme Court, while releasing the accused on probation for an offence under Section 325 IPC, held as under (Para 2) :-
"The occurrence took place as a result of sudden quarrel between some children and others of the family of Hansa and Mst. Rao in regard to throwing of some bricks or brick-bats. In the course of this sudden occurrence Hansa is stated to have caused the injury on the head of Mst. Rao. Learned counsel for the appellant has pressed for our consideration the application of provisions of Section 4 of the Probation of Offenders Act, 1958 to his case. We are inclined to accept this stand taken on behalf of the appellant as justifiable and tenable in law on the special facts of this case."
In another case titled Bishnu Deo v. State of West Bengal, , the Hon'ble Supreme Court held that criminal justice is not a computer machine. It deals with complex human problems and diverse human-beings. Accused are also like other persons. They too are creators of circumstances and the Court emphasize the need for recording of special reasons with regard these offenders. The expression 'special reasons' has been used by the Court with reference to constitutional and legislative directives and keeping in view the changing times and present principles of criminology.
11. In the present case and keeping in view the age of the offender at the time of the offence and even at the time of pronouncement of judgments, it needed a better discussion on the question whether the accused was entitled to the benefit of Probation of Offenders Act or not. While giving the benefit of the provisions of Sections 360 and 361 of the Code of Criminal Procedure read with the provisions of Probation of Offenders Act, the age of the accused is certainly one of the basic criteria to be considered by the Court. The learned Magistrate noticed that the age of the petitioner was 16-17 years and the Only reason given by him while declining the benefit of probation to the petitioner as aforestated, does not appear to be sufficient in the light of the principles of law settled by the Supreme Court.
12. The petitioner in the present case was the first offender. The occurrence took place at the spur of the moment and he hardly intended to cause any injury to the girl. The release on probation is only suspension of sentence, which ultimately basis itself on the future conduct of the offender. Opportunity to reform is one of the basic policy of the legislation now and is a part and parcel of our society and social reforms. The counsel rightly placed reliance on another judgment of this Court in case of Harbans Singh v. State of Punjab,(1990) 1 Rec Cri C 571.
13. In view of the discussion above, it is directed that the petitioner be given the benefit of Probation of Offenders Act and be released. Accordingly, remaining sentence of the petitioner shall remain suspended upon his furnishing a bond in the sum of Rs. 20,000/- of good behaviour and so maintaining it for a period of two years. In the event of his indulging in any other criminal offence and infringing the terms and conditions of the bond within this period, he shall be produced before the Court of competent jurisdiction to undergo the remaining sentence in accordance with law. The bond be furnished to the satisfaction of Chief Judicial Magistrate, Gurgaon. This revision petition stands disposed of accordingly.