Calcutta High Court (Appellete Side)
Moniprasad Mothey vs Unknown on 28 April, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
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(10) mb C.R.R. 2800 of 2003
In re.: An Application under Section 401 of the Code of Criminal Procedure filed on 22nd
December, 2003.
In the matter of: Moniprasad Mothey
Mr. Biplab Mitra,
Ms. Trina Mitra..................................for the petitioner.
Mr. R.K. Ghosal.................................for the State
Moniprasad Mothey, a convict under Section 224 of the Indian Penal Code, has
come up with this application under Section 401 of the Code of Criminal Procedure
challenging the legality, validity and propriety of the judgment and order passed on
21.10.2003by the learned Additional Sessions Judge, 1st Court, Darjeeling in Criminal Appeal No. 4 of 2001 affirming the order passed by the learned Sub Divisional Judicial Magistrate, Darjeeling dated 18.10.2001 in G.R. Case No. 205(1) of 1998 whereby and whereunder the petitioner was convicted for committing offence under Section 224 of the Indian Penal Code and his prayer for releasing him on probation under Section 360 of the Code of Criminal Procedure was rejected.
The petitioner was in Darjeeling jail in connection with an offence under Section 302 of the Indian Penal code. While he was in judicial custody in Darjeeling jail in connection with that case, he succeeded to escape from the custody and, ultimately, was apprehended. He was found not guilty in the trial of murder case subsequently, but a separate trial was initiated against him for committing offence under Section 224 of the 2 Indian Penal Code. The learned Trial Court, i.e., the Sub Divisional Judicial Magistrate as well as the learned Appellate Court found him guilty of offence under Section 224 of the Indian Penal Code and convicted him thereto. He was sentenced to pay a fine of Rs.500/- in default rigorous imprisonment for six months. The learned Trial Court considered his prayer under Section 360 of the Code of Criminal Procedure and taken the following view:
" It has already been proved that the accused-convict was a under trial prisoner in a murder case and despite that fact he deliberately escaped from the lawful custody leaving the services of the police personnel in a stake and that daring attitude of the accused-convict does in no way deserves any sort of leniency from the law endangering the society. So, I am not inclined to attract the provisions of Probation of Offenders Act and in my considered opinion the accused deserves a maximum punishment as prescribed under the law."
In the appeal against that order, the learned Appellate Court while affirming the order passed by the learned Trial Court observed:
"It is clear from Ext. 1/1 that the accused/appellant was admitted in the prisoners' cell of the Darjeeling Sadar Hospital in connection with Sukhia Pokhri P.S. case no. 22/98 dated 21.7.1998 under sec. 302/201 I.P.C. i.e., murder and causing disappearance of evidence of offence and later on he again committed an offence u/sec. 224 of I.P.C. and while in custody he was allowed by the concerned police personnel on duty to attend his nature's call, he exploited the liberty in a cool brain and put the concerned police personnel to imminent danger of suspension from the service and departmental proceeding. Therefore, both the antecedents of the accused and the circumstances in which he committed the offence under sec. 3 224 I.P.C. speak against him making him debarred from taking the advantage to be released on probation by the concerned court."
As far as the order of conviction recorded by the learned Trial Court and affirmation by the learned Appellate Court is concerned, I find from the evidence on record as well as from the judgment impugned, there is a concurrent finding of facts to the effect that the petitioner was in custody at the relevant time and escaped therefrom in a planned way. This Court, in exercising its revisional jurisdiction under Section 401 read with Section 482 of the Code of Criminal Procedure should not and must not upset the concurrent findings of fact of the learned Trial Court and the learned Appellate Court. There is no patent wrong or error either in jurisdiction or in procedure in the trial as well as in the appeal. Therefore, the order of conviction passed by the learned Trial Court, which was affirmed by the learned Appellate Court is upheld.
Mr. Biplab Mitra, learned advocate appearing on behalf of the petitioner, contends that both the learned Trial Court was well as the learned Appellate Court erred in dealing with the provisions of Section 360 of the Code of Criminal Procedure. The fact that the petitioner had no criminal antecedents and that he was aged about 45 years at the relevant point of time and having a family was not considered by the Courts. The provisions of Section 360 of the Code of Criminal Procedure was not extended to him simply because he put some government official's service at stake. According to Mr. Mitra, that cannot be a ground for not extending the benefits of Section 360 of the Code of Criminal Procedure to the petitioner. In support of his contention, Mr. Mitra, refers to the decisions of the Hon'ble Apex Court in Chandreshwar Sharma vs. State of Bihar, reported 4 in 2001(3) Crimes 45 (SC), and Elimma & Anr. Vs. State of Karnataka, reported in JT 2009 (2) SC 358.
Mr. R. K. Ghosal, learned counsel appearing on behalf of the opposite party-State of West Bengal, contends that the learned Trial Court as well as the learned appellate Court found it inexpedient to extend the benefit of Section 360 of the Code of Criminal Procedure to the petitioner on the obvious ground that he committed that offence in a planned way and put some government official's services at stake. Therefore, the view of the learned Trial Court as well as the learned Appellate Court cannot be interfered with.
The provisions of Section 360(1) of the Code of Criminal Procedure is set out below:
"360. Order to release on probation of good conduct or after admonition._ (1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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 where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class forwarding the accused to or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2)."
A cursory perusal of the provisions of Section 360(1) of the Code of Criminal Procedure makes it abundantly clear that when any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of 5 seven years or less, or when any person under twenty-one years of age, the Court before which he is convicted 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, for a particular period to keep the peace and he of good behaviour.
In the instant case, I reiterate, the petitioner was in jail hospital, is to be spoken precisely under judicial custody in connection with a murder case at the relevant time. He escaped therefrom but apprehended. The trial of murder against him was concluded and he was found not guilty to the charge of murder and acquitted therefrom. However, in a separate proceeding under Section 224 of the Indian Penal Code, he was found guilty by the learned Trial Court as well as by the learned Appellate Court and he was not provided with the benefit of provisions of Section 360 of the Code of Criminal Procedure.
The reasons given by the learned Trial Court as well as by the learned Appellate Court cannot be said to be lawful reasons. It is expected that in a case like under Section 224 of the Indian Penal Code which is punishable with imprisonment, which may extend to two years or with fine or with both, the Court ought to have approached in a pragmatic manner. The convict-petitioner was having no criminal antecedents. He was found not guilty in the case in connection with which he was in the jail at the relevant time. He was aged about 45 years and having a family. It appears also that he was a local man. He was sentenced to pay a fine of Rs.500/- only, in default, to suffer rigorous imprisonment for six months. It would have been just and proper for both the Courts below to extend the benefits of the provisions of Section 360 of the Code of Criminal Procedure to the petitioner.
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It is settled principle of law that where the Court has dealt with an accused under Section 360 of the Code of Criminal Procedure and yet do not want to grant the benefit of the said provisions, then it shall record in its judgment specific reasons for not having done so.
In Eliamma's case (supra) the Hon'ble Apex Court was pleased to remit the matter to the Trial Court for limited purposes for deciding whether the benefit under Section 360 of the Code of Criminal Procedure can be extended to the appellants. In that case before the Hon'ble Apex Court, the learned Trial Court did not at all consider the provisions of Section 360 of the Code of Criminal Procedure. However, in the case in hand, both the learned Trial Court as well as the learned Appellate Court had considered the applicability of the provisions of Section 360 of the Code of Criminal Procedure.
In Chandreshwar's case (supra), the Hon'ble Court observed that it is mandatory duty cast upon Magistrate to consider applicability of provisions of Section 360 of the Code of Criminal Procedure after conviction of an accused.
The provisions of Section 360 of the Code of Criminal Procedure is meant for dealing first offender leniently in order to give him a chance of reforming himself and to protect him from being corrupted and turned into a regular criminal by association with hardened criminals in jail. That is why the provisions of Section 360 of the Code of Criminal Procedure apply to both the young as well as adult offenders. In order to invoke the provisions of Section 360 of the Code of Criminal Procedure, two conditions must co-exist, (I) no previous conviction is proved and (2) the convict must be of the character specified in the section. In exercising the discretion, the Court must record also to the other 7 directions in the Section, i.e., the age, character and antecedents of the offender and to the circumstances in which the offence was committed.
It is already found that the convict was 45 years of age at the time he was taken behind the bars in connection with the murder case. He was having a family and a permanent abode. He was not a habitual offender. No criminal antecedent was recorded against him by either of the Courts. He was found not guilty to the charge of murder and was, ultimately, acquitted therefrom.
The matter before this Court relates back to the year 1998 and a period more than 12 years has been elapsed since then. The petitioner is not a habitual offender nor he is involved in other criminal proceeding. He was 45 years of age at that time. Looking to his age, conduct and character and all other relevant circumstances, it would be proper, in the interest of justice, to direct him to be released on a bond of Rs.10,000/- for maintaining good conduct for a period of two years and not to indulge in any crime instead of sentencing him to any punishment.
Therefore, while upholding the conviction, I direct the learned Trial Court to release the accused on probation for two years against a bond of Rs.10,000/- under the probation officer who would be liable to report periodically to the learned Trial Court and on the basis of the report, the learned Trial Court would pass a final order.
Accordingly, I allow this revisional application in part.
With the directions above, this revisional application is disposed of. Interim order, if any, stands vacated.
There will, however, be no order as to costs.
Let urgent photostat certified copy of this order, if applied for, be given to the learned advocates of the parties upon compliance of necessary formalities. 8 (Kanchan Chakraborty, J)