Andhra Pradesh High Court - Amravati
Bandi Sai Baba, vs The State Of A.P. Rep., By Its Pp. on 3 September, 2025
APHC010761482011
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
WEDNESDAY, THE THIRD DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO
CRIMINAL REVISION CASE NO: 2246/2011
Between:
1. BANDI SAI BABA, S/O. BABU RAO, R/O. SANJEEV NAGAR,
GOKAVARAM, EAST GODAVARI.
...PETITIONER
AND
1. THE STATE OF A P REP BY ITS PP, rep., by its Public Prosecutor,
High Court of Andhra Pradesh, Hyderabad, through Station House
Officer, II Town C.C.S. Rajahmundry,
...RESPONDENT
Revision filed under Section 397/401 of CrPC praying that in the
circumstances stated in the affidavit filed in support of the Criminal Revision
Case, the High Court may be pleased to set aside the Judgment passed by
the learned VI Additional Session Judge, at Rajahmundry, East Godavari
District Dated 03.11.2011, in Criminal Appeal No.26 of 2011 by confirming the
Judgment of learned VI Additional Judicial First Class Magistrate,
Rajahmundry, East Godavari District in CC.No.45 of 2009, dated 05.01.2011.
IA NO: 1 OF 2011(CRLRCMP 3384 OF 2011
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
Suspend the Operation of the Judgment in Criminal Appeal No.26 of 2011,
Dated 03.11.2011, on the file of the II additional Sessions Judge, at
Rajahmundry, East Godavari District, in confirming the conviction and
sentence Passed in CC.No.45 of 2009, on the file of the VI Additional Judicial
2
First Class Magistrate, Rajahmundry, East Godavari District, by enlarge the
Petitioner on Bail pending disposal of the above Criminal Revision Case.
IA NO: 1 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
enlarge the Petitioner on Bail in the above CRLRC in connection with Criminal
Appeal No.26 of 2011, dated 03.11.2011, on the file of the II Additional
Sessions Judge, at Rajahmundry, East Godavari District in Confirming the
conviction and sentence Passed in CC.No.45 of 2009, on the file of the VI
Additional Judicial First Class Magistrate, Rajahmundry, East Godavari
District, pending disposal of CRLRC 2246 of 2011 and to pass
Counsel for the Petitioner:
1. G SIMHADRI
Counsel for the Respondent:
1. K. SANDEEP
The Court made the following:
ORDER
1. This Criminal Revision Case, filed under sections 397 and 401 of the Code of Criminal Procedure, 1973, (for short, „Cr.P.C.‟), is preferred by the petitioner/A.1, who was the appellant in Criminal Appeal No.26 of 2011, on the file of VI Additional Sessions Judge, Rajahmundry, East Godavari District (for short, „the 1st Appellate Court), challenging the judgment, dated 03.11.2011, whereunder the 1st Appellate Court dismissed the appeal and confirmed the conviction and sentence imposed against the accused for the offence under Section 411 of Indian Penal Code, 1860 (for short, „IPC‟) vide Judgment dated 05.01.2011 in C.C.No.45 of 2009 on the file of learned VI Additional Judicial First Class Magistrate, Rajahmundry, East Godavari District (for short, „the trial Court‟).
2. By Judgment dated 05.01.2011 in C.C.No.45 of 2009, the learned VI Additional Judicial First Class Magistrate, Rajahmundry, East Godavari District 3 (for short, „the Trial Court‟), convicted the petitioner/accused and sentenced him to undergo rigorous imprisonment for a period of six (6) months for the offence punishable under Section 411 of IPC.
3. The parties to this Criminal Revision Case will hereinafter be referred to as described before the trial Court for the sake of convenience.
4. The brief facts of the case of the prosecution are that:
(a) PW.1 is the de facto complainant. On 16.10.2008 at around 11:00 AM, in front of Axis Bank, T. Nagar, Rajahmundry, PW-1 placed Rs.1,60,000/- withdrawn from the bank, inside the oil tank cover of his Hero Honda Splendor motorcycle. As he was about to start the vehicle, an unknown person distracted him by pointing out a Rs.10/-
note lying on the ground. When PW.1 bent down to pick it up, he later noticed that the cash was missing. He immediately lodged a complaint, which was registered the same day at 1:00 PM as Crime No.118/2008 under Section 379 IPC. During the investigation, witness statements were recorded, and a rough sketch and scene observation report were prepared.
(b) On 28.01.2009, based on credible information, PW.6 arrested A-1 at Gokavaram in the presence of PW-4 and PW-5 in connection with Crime No. 234/2008 of III Town CCS Police Station. A-1 confessed to the offence and led the police to recover Rs. 40,000/- part of the stolen property from his house at around 6:30 PM. Two mediators' reports were prepared. The accused were later produced before the Court on a PT warrant upon requisition. Upon completion of the investigation, a charge sheet was filed against A-1 and A-2 for the offence under Section 379 or 411 of the IPC.
5. The learned VI Additional Judicial First Class Magistrate, Rajahmundry, took cognizance under section 379 r/w.411 of IPC against the A.1 and A.2.
46. Upon the appearance of the accused, copies of the prosecution documents were furnished to the accused as contemplated under Section 207 Cr. P.C.
7. The accused were examined under section 239 of Cr.P.C. A charge under Section 379 r/w.411 of IPC against the accused is framed, read over and explained to the accused in Telugu, to which the accused pleaded not guilty and claimed to be tried.
8. During the course of the trial, on behalf of the prosecution, P.Ws. 1 to 7 were examined, and Exs.P1 to P6 were marked. After the closure of the evidence of the prosecution, the accused were examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which they denied the same and stated that they had no defence witnesses. The accused were examined under Section 313 of Cr.P.C. and pleaded not guilty.
9. The trial Court, on hearing both sides and on considering the oral as well as documentary evidence, found the accused guilty of the offence under Section 411 of the IPC. However, the accused was acquitted of the offence under Section 379 of IPC vide Judgment dated 05.01.2011 in C.C.No.45 of 2009.
10. Felt aggrieved of the aforesaid conviction and sentence, the unsuccessful accused filed Criminal Appeal No.26 of 2011 before the 1st Appellate Court, and the 1st Appellate Court dismissed the Criminal Appeal and confirmed the conviction and sentence imposed against the accused vide Judgment dated 03.11.2011. Felt aggrieved by the same, the unsuccessful appellant/A.1 filed the present Criminal Revision Case, challenging the Judgment of the learned Sessions Judge in Criminal Appeal No.26 of 2011.
11. Heard learned counsel for the petitioner/A.1, and Sri K. Sandeep, learned Assistant Public Prosecutor, appearing for the Respondent/State.
512. Despite having raised multiple grounds against the conviction in the grounds of revision, the learned counsel for the petitioner/A.1 has limited his arguments exclusively to the quantum of the sentence. He further submits that the petitioner/A.1 is the sole breadwinner for his wife and children, and requests that the Court take a lenient view. The petitioner has no prior criminal record and has been in judicial custody for a total of 54 days i.e., from 31.01.2009 to 11.02.2009, from 03.11.2011 to 15.11.2011, and from 05.08.2025 to till date.
13. It is settled law as observed by the Hon‟ble Supreme Court in State of Maharashtra V. Jagmohan Singh Kuldip Sing Anand1, that "in exercise of revisional powers, this Court need not undertaken in-depth and minutest reexamination of entire evidence, when there is no error in the findings arrived by the Trial Court as well 1st Appellate Court".
14. The Apex Court in Manju Ram Kalita V. State of Assam2, held that:
9. ....if the courts below have recorded the finding of fact, the question of re-
appreciation of evidence by the third Court does not arise unless it is found to be totally perverse. The higher Court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by reappreciating the evidence.
10. This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from the normal practice.
8. ....The position may undoubtedly be different if interference is one of law from [the] facts admitted and proved or where the finding of fact is materially affected by violation of any rule of law or procedure."
15. The aforesaid view was further reiterated by the Hon'ble Supreme Court in Malkeet Singh Gill V. The State of Chhattisgarh3, thus:
"8. ....The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate Court and the scope of interference in revision is extremely narrow. Section 397 of Criminal Procedure 1 (2004) 7 SCC 659 2 (2009) 13 SCC 330 3 AIR 2022 SC 3283 6 Code (in short 'Cr.P.C') vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be wellfounded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings."
16. In light of the settled legal position, upon reviewing the judgments, this Court finds that both courts, after recording cogent reasons, concurrently held that the accused was found guilty of the offence under Section 411 of the IPC. In view of the overall facts and circumstances of the case, this Court finds that the 1st Appellate Court has rightly appreciated the evidence and assessed the material placed before it in a proper and correct perspective.
17. Upon considering the submissions of learned counsel on both sides, I see no illegality, error, or perversity in the findings of the Courts below regarding the conviction of the accused for the offence under Section 411 of the IPC.
18. There is no justification for interfering with the findings of the 1st Appellate Court insofar as they pertain to setting aside the conviction under Section 411 of the IPC.
19. Now, the Point that arises for consideration is:
Whether the sentence passed by the 1st Appellate Court warrants any interference?
POINT :
20. Learned counsel for the petitioner/accused has sought a modification of the sentence, contending that further incarceration would be excessive and unjust, given that the accused had already served a significant portion of the sentence. The learned counsel for the petitioner places reliance on the decision in Omanakkuttan V. State of Kerala4, wherein the Hon‟ble Supreme 4 (2021) 12 SCC 92 7 Court reduced the sentence awarded to the accused punished for offences under section 308 and 326 IPC for the period already undergone. Reference has also been made to the Judgment in the case of Murali V. State5, wherein the Hon‟ble Supreme Court, considering the fact that appellants have no other criminal antecedent the punishment for offences under section 147, 148, 341, 352, 323, 324, 307 and 34 IPC was reduced to the period already undergone.
21. It is a well-established principle of sentencing policy that the punishment imposed must be proportionate to the gravity of the proven offence. The sentence should be neither nominal nor excessive. What constitutes a proportionate sentence must be determined on a case-by-case basis, having due regard to the specific facts and circumstances of each matter.
22. While ordering the sentence, the facts and circumstances of each of the case before the Court has to be appreciated on its own merits and the circumstances in one criminal case cannot be taken as a binding precedent in so far as the order on sentence in another case, unless the facts and circumstances of each of the instances corresponds to each other or exactly tallies. But always, the Court must bear in mind the cardinal principle that the sentence ordered must be proportionate to the gravity of the proven guilt, and it should not be excessive or exorbitant.
23. True that in the instant case, the petitioner/A.1 has been found guilty of an offence punishable under Section 411 of IPC to retain the stolen property knowing that it is a subject matter of theft.
24. Learned counsel for the petitioner/accused submits that the accused was approximately 20 years old at the time of the offence and has no prior criminal record. His family depends solely on him for support. He is now around 37 years old. The incident occurred on 16.10.2008. According to the nominal rolls submitted by the Superintendent of Jails, Central Prison, Rajamahendravaram, the accused has been in custody for a total of fifty four 5 (2021) 1 SCC 726 8 days i.e., from 31.01.2009 to 11.02.2009, from 03.11.2011 to 15.11.2011, and from 05.08.2025 to till date.
25. The conviction and sentence under Section 411 of IPC, as recorded by the Trial Court, were affirmed by the 1st Appellate Court while dismissing the appeal.
26. Regarding the period of imprisonment served by the accused, the nominal rolls submitted by the prison authorities indicate that he had completed fifty-four days during the investigation, inquiry, and trial.
27. Learned counsel for the petitioner submits that the trial court has not invoked the provisions of the Probation of Offenders Act, 1958 (hereinafter „the P.O. Act‟). Section 4 of the Act reads as follows:
"Sec. 4(1) 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 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 behavior."
28. It is submitted that the petitioner has a fixed place of abode and regular occupation. The trial court ought to have obtained a report from the District Probation Officer. However, without exercising its powers under Section 4 of the P.O. Act, the trial court convicted the accused, and the first appellate Court upheld this conviction.
29. In Chellammal and Another V. State Represented by the Inspector of Police6, the Hon‟ble Supreme Court held that:
26. On consideration of the precedents and based on a comparative study of Section 360, Cr. PC and sub-section (1) of Section 4 of the Probation Act, what is revealed is that the latter is wider and expansive in its coverage than 6 2025 Supreme(SC) 685 9 the former. Inter alia, while Section 360 permits release of an offender, more twenty-one years old, on probation when he is sentenced to imprisonment for less than seven years or fine, Section 4 of the Probation Act enables a court to exercise its discretion in any case where the offender is found to have committed an offence such that he is punishable with any sentence other than death or life imprisonment......
28. Summing up the legal position, it can be said that while an offender cannot seek an order for grant of probation as a matter of right but having noticed the object that the statutory provisions seek to achieve by grant of probation and the several decisions of this Court on the Point of applicability of Section 4 of the Probation Act, we hold that, unless applicability is excluded, in a case where the circumstances stated in sub-section (1) of Section 4 of the Probation Act are attracted, the Court has no discretion to omit from its consideration release of the offender on probation; on the contrary, a mandatory duty is cast upon the Court to consider whether the case before it warrants releasing the offender upon fulfilment of the stated circumstances. The question of grant of probation could be decided either way. In the event the Court, in its discretion, decides to extend the benefit of probation, it may, upon considering the report of the probation officer, impose such conditions as deemed just and proper. However, if the answer be in the negative, it would only be just and proper for the Court to record the reasons therefor.
30. It is the mandatory duty cast upon the Magistrate, as well as the 1st Appellate Court, which has not been performed in the case at hand. As seen from the record, neither of the Courts has given any specific reason as to why the benefit of section 4 of the Probation of Offenders Act has not been given to the petitioner. However, the record shows that nearly seventeen years have elapsed since the offence involving the accused. During this extensive period, there is no material on record indicating that the accused has engaged in any further criminal activity or possesses a history of criminal antecedents. Considering the passage of time since the incident, the absence of any further criminal involvement, this Court is persuaded to carefully weigh the implications of imposing further imprisonment at this stage. Incarceration after such a prolonged period could disrupt the accused's personal life and adversely affect the welfare of his family, who may be dependent on him. After giving my anxious consideration to the question of reduction of sentence as requested on behalf of the petitioner, this Court is of the view that some 10 consideration should be shown to the petitioner in the matter, specifically concerning the sentence of imprisonment. Accordingly, this Court deems it appropriate to modify or limit the imprisonment imposed on the accused, balancing the interests of justice with the mitigating factors that have emerged over time.
31. Considering the age of the accused, economic condition, the passage of time since the accident, and the absence of any prior criminal antecedents, this Court finds that the sentence imposed against the accused for the offence alleged is on the higher side and can be considered excessive. Therefore, this Court finds it necessary to interfere with the impugned Judgment of the 1 st Appellate Court only to the limited extent of reducing the quantum of sentence, to ensure that the punishment remains reasonable and proportionate to the proven guilt.
32. After taking into consideration the material placed on record, it can be seen that the petitioner/accused has no previous antecedents. In terms of Section 428 Cr.P.C., any period of detention undergone by an accused during the investigation, inquiry, or trial of the same case must be set off against the term of imprisonment ultimately imposed. However, considering the period of incarceration already undergone by the accused, this Court is of the considered opinion that the sentence of rigorous imprisonment should be modified to the period already undergone, which, in the circumstances, would meet the ends of justice. However, while upholding the conviction and sentence imposed on the accused by the 1st Appellate Court for the offence under Section 411 of IPC, this Court is of the considered view that the ends of justice would be adequately served by reducing the substantive sentence of imprisonment to the period already undergone by the accused. Accordingly, the Point is answered.
33. In the result, the Criminal Revision is partly allowed. While the conviction of petitioner / A.1 for the offence under Section 411 of IPC is 11 upheld, as rendered by the 1st Appellate Court in Crl.A.No.26 of 2011 dated 03.11.2011 affirming the Judgment of the Trial Court in C.C.No.45 of 2009 dated 05.01.2011, the sentence of Rigorous Imprisonment imposed on petitioner / A.1 is hereby modified and reduced to the period already undergone. Accordingly, the substantive sentence of imprisonment imposed by the 1st Appellate Court stands reduced to that duration. The petitioner/A.1 shall be released forthwith if he is not involved in any other crimes. The bail bonds executed by the accused shall stand discharged.
Interim orders granted earlier, if any, shall stand vacated, and the miscellaneous applications pending, if any, shall stand closed.
_____________________________ JUSTCIE T. MALLIKARJUNA RAO Date: 03.09.2025 MS 12 THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL REVISION CASE NO: 2246 of 2011 Date: 03.09.2025 Note: Issue CC by tomorrow B/o. MS