Jammu & Kashmir High Court
Joginder Singh vs State Of J&K on 6 May, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
Item No. 01
Suppl. List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(through virtual mode)
CrlM No.1952/2024
In CRA No.10/2005
JOGINDER SINGH ...APPELLANT/APPLICANT(s)
Through: Mr. Sunil Sethi, Sr. Advocate, with
Mr. Ankush Chandel, Advocate.
Vs.
STATE OF J&K ...RESPONDENT/NON-APPLICANT(S)
Through: None.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER(ORAL)
06.05.2025
1. Through the medium of present application, the appellant/applicant has sought consideration of his case for grant of benefit of Probation of Offenders Act, 1958, or in the alternative to reduce his sentence to the period of incarceration of three months that has already been undergone by him during the trial and post-conviction.
2. The appellant/applicant was convicted of offences under Section 307 and 498A RPC in a case arising out of FIR No.13/1993 registered with Police Station, Khour, in terms of judgment of conviction dated 23.03.2005 passed by the learned Principal Sessions Judge, Jammu. Vide order dated 24.03.2005, the learned Sessions Judge sentenced the appellant/applicant to undergo rigorous imprisonment for a period of five years for commission of offence under Section 307 RPC and for a period of two years for 2 commission of offence under Section 498-A RPC. The appellant was also sentenced to pay a fine of Rs.50,000/ for commission of offence under Section 307 RPC and Rs.10,000/ for commission of offence under Section 498-A RPC. In default of payment of fine, the appellant was directed to undergo further imprisonment of two years for offence under Section 307 RPC and six months for offence under Section 498-A RPC.
3. The aforesaid judgment of conviction and order of sentence came to be challenged by the appellant/applicant before this Court vide CRA No.10/2005. Vide judgment dated 06.12.2024 passed by this Court, the judgment of conviction passed by the trial court has been upheld. However, so far as the sentence imposed upon the appellant/applicant by the trial court is concerned, the same has been reduced by providing that in proof of offence under Section 307 RPC, instead of imprisonment of five years, the appellant/applicant shall undergo imprisonment for a period of two years whereas in proof of offence under Section 498-A RPC, sentence of imprisonment has been reduced from two years to one year.
4. In the present application, the appellant/applicant has submitted that he continues to live with his wife even after the incident which led to his conviction. It has been further submitted that the appellant/applicant is a poor person and being an ex-serviceman, it will be very difficult for him to approach the Supreme Court for redressal of his grievance. It has been further submitted that the High Court of Rajasthan has, in somewhat similar circumstances in the case titled Nawal Kishore and another vs. State of 3 Rajasthan (Criminal Appeal No.483/1993 decided on 19.02.2004) granted the benefit of Probation of Offenders Act to the convict therein.
5. Heard learned Senior Counsel for the appellant/applicant and perused record of the case.
6. Section 4 of the J&K Probation of Offenders Act, which is in pari- materia with Section 4 of the Probation of Offenders Act, 1958, lays down the guidelines regarding extension of benefit of release on probation to a convict. It would be apt to notice the provisions contained in Section 4 of the J&K Probation of Offenders Act, which are reproduced as under:
"4. Power of Court to release certain offenders on probation of good conduct. --(1) When any person is found guilty of having committed an offence and not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the 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 :
Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1), is made, the Court may, if it is of opinion that in the interests of the offender and the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain 4 under the supervision of a probation officer named in the order during such period, not being less than one year, as, may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.
(4) The Court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions, specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the Court may, having regard to the particular circumstances, consider fit to impose for preventing a repetitions of the same offence or a commission of other offences by the offender. (5) The Court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.
7. From a perusal of sub-section (1) of Section 4 quoted above, it is clear that when a person is found guilty of having committed an offence other than the offence punishable with death or imprisonment for life, the court, that has passed the judgment of conviction having regard to the circumstances of the case including the nature of the offence and the character of the offender, has discretion to release such person on probation of good conduct subject to the conditions laid down in Section 4.
8. Thus, it is clear that the power of the court to release a convict on probation of good conduct is restricted to cases where the person has been convicted of an offence other than the offence punishable with death or imprisonment for life. In other words, a person who has been convicted of an offence which is punishable with death sentence or with life imprisonment cannot claim the benefit of release on probation of good conduct. This has been clearly explained by the Supreme Court in the cases 5 titled Rattan Lal vs. State of Punjab (AIR 1965 SC 444) and Sitaram Paswan & anr. Vs. State of Bihar (AIR 2005 SC 3534).
9. Coming to the facts of the present case. The appellant/applicant has been convicted, inter alia, of offence under Section 307 RPC. It has been proved that he had attempted to commit murder of his wife by pouring kerosene oil upon her and setting her on fire with a matchstick, which resulted in extensive burn injuries to her. Section 307 RPC makes the offence of attempt to murder, if such an act causes hurt to any person, punishable with imprisonment for life or imprisonment of either description for ten years and fine. The offence, of which the appellant/applicant has been convicted, carries punishment of life imprisonment, as such, his case for grant of benefit under Probation of Offenders Act cannot be considered. The prayer of the appellant/applicant is, therefore, without any merit.
10. The alternative prayer made by the appellant/applicant can also not be granted in his favour because this Court, while passing judgment dated 06.12.2024, has reduced the sentence to the maximum possible extent after taking into consideration all aspects of the matter including the circumstances that the appellant/applicant continued his marriage with the victim as also his prolonged trial. Even otherwise, it is not open to this Court to review/modify its order of sentence in view of the specific bar contained in section 369 of the J&K Cr. P. C, which clearly provides that a criminal court cannot alter or review its judgment except to correct the clerical errors. Reduction of sentence is certainly not a clerical error which can be 6 corrected by this Court after having already pronounced judgment dated 06.12.2024.
11. For the foregoing reasons, I do not find any merit in this application. The same is dismissed accordingly. Interim order dated 18.12.2024 shall stand vacated and the appellant/applicant is directed to surrender before the trial court within one month from today and in default, the trial court shall issue warrants of arrest against the appellant/applicant, whereafter he shall be sent to jail for serving the balance period of sentence.
12. A copy of this order be sent to the trial court for information and compliance.
(Sanjay Dhar) Judge Srinagar 06.05.2025 "Bhat Altaf-Secy"
Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 08.05.2025 01:41