Delhi District Court
Smt. Vijay Shri vs . 1. Devender Kumar on 22 May, 2015
Smt. Vijay Shri Vs. 1. Devender Kumar
2. The State
IN THE COURT OF SH. HARISH DUDANI
SPECIAL JUDGE, (PC ACT) CBII
DWARKA COURTS; NEW DELHI
Smt. Vijay Shri
W/o Sh. Devender
R/o - RZ521, Surakpur Road
Gopal Nagar, Najafgarh
Delhi.
.............. Appellant
VERSUS
1. Devender Kumar
S/o Late Sh. Nand Kishore
R/o House No. 146, Atrey Clinic,
Ajay Park, Naya Bazar,
Najafgarh, Delhi.
2. The State
( Govt. of N.C.T. Of Delhi)
........Respondents
CA No. 12/2014
Date of Institution 10.10.2014
Police Station Najafgarh
Reserved for orders on 16.05.2015
Judgment announced on 22.05.2015
JUDGMENT
1. This appeal has been filed against the order dated 06.06.2014 passed by Ld. MM, Mahila Court02 ( South West), CA No: 12/2014 Page 1 of 10 D.O.O. 22.05.2015 Smt. Vijay Shri Vs. 1. Devender Kumar
2. The State Dwarka Courts by which the respondent No. 1 was ordered to be released on probation of good conduct for one year on furnishing a bond in the sum of Rs. 10,000/ and to pay a compensation of Rs. 30,000/ to the complainant within a month from the said date.
2. The appellant feels aggrieved by the order on sentence and has prayed for enhancement of the sentence awarded to Respondent No. 1 vide order dated 06.06.2014 .
3. I have heard Ld. Counsel for the parties and perused the record.
4. The appellant was complainant in case FIR No. 628/05 under Section 498A IPC, PS Najafgarh. The allegations against the accused ( Respondent No. 1 herein) were that the marriage between the appellant and Respondent No. 1 was solemnized on 07.02.1984 and father of the appellant had given dowry articles beyond his capacity but Respondent No. 1 was not satisfied and three children were born from the wedlock between appellant and Respondent No. 1. During the subsistence of marriage, Respondent No. 1 subjected the appellant to harassment on account of demand of dowry and on 26.05.2005 Respondent No. 1 attacked the appellant with a cesarean knife on account of which she was hospitalized and she made complaint to the police, on the basis of which case for offence under Section 498A IPC was registered against Respondent No. 1. Respondent No. 1 was sent for trial for offence under Section 498A IPC on completion of investigation.
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2. The State
5. Ld. MM, Mahila Court02 vide judgment dated 30.04.2014 convicted accused ( Respondent No. 1 herein) for offence under Section 498A IPC and vide order on sentence dated 06.06.2014 , Respondent No. 1 was ordered to be released on probation of good conduct for one year on furnishing a bond in the sum of Rs. 10,000/ and to pay a compensation of Rs. 30,000/ to the complainant within a month from the said date.
6. The appellant feels aggrieved by the order on sentence dated 06.06.2014 on the ground that in the impugned order on sentence dated 06.06.2014, the age of Respondent No. 1 has been wrongly considered as 64 years although the date of birth of Respondent No. 1 is 19.06.1960 and he was 54 years at the time of passing of impugned order dated 06.06.2014 and the Respondent No. 1 has misled the court by stating his age as 64 years. It is contended that looking at the mental and physical torture committed on the appellant by Respondent No. 1, Respondent No. 1 was not entitled for deserving leniency by the court.
7. The thrust of arguments of appellant is that in the impugned order dated 06.06.2014, Ld. MM has considered the age of Respondent No. 1 as 64 years while at the time of passing of impugned order dated 06.06.2014, the age of the Respondent No. 1 was 54 years and impugned order dated 06.06.2014 by which Respondent No. 1 has been given benefit of probation by Ld. MM is on account of misleading the Trial Court regarding his age by Respondent No. 1. It is further contended by appellant CA No: 12/2014 Page 3 of 10 D.O.O. 22.05.2015 Smt. Vijay Shri Vs. 1. Devender Kumar
2. The State that looking at the instances of cruelty committed on her, Respondent No. 1 was not entitled to a lenient view and is liable to be sentenced to imprisonment.
8. The contention of Ld. Counsel for Respondent No. 1 is that Respondent No. 1 has not misled the court and had stated his age as 54 years but it appears that by inadvertent mistake, the same has been noted by the Ld. MM as 64 years. It is further contended on behalf of Respondent No. 1 that Respondent No. 1 is an Ayurvedic Doctor by profession and has suffered trial since the year 2005 and is not involved in any criminal case previously and no purpose will be served by sending him to imprisonment.
9. In the impugned order dated 06.06.2014, Ld. MM has observed that the convict is an old aged man of 64 years and has also suffered a long drawn trial since 2005 and has been sufficiently punished by his own family as the complainant and his children have broken all ties with him in his old age and also the fact that he does not have any criminal record which is supported by the report of SHO and no purpose would be served by sending the convict behind the bars. In the impugned order dated 06.06.2014, Ld. MM has further observed that however, justice demands that the complainant who has also suffered at the hands of the convict is sufficiently compensated.
10. The perusal of aforesaid order of Ld. MM shows that while sentencing the convict ( Respondent No. 1 herein), Ld. MM has not passed the order solely on the basis of age of the convict but Ld. MM has also taken into consideration the fact that the CA No: 12/2014 Page 4 of 10 D.O.O. 22.05.2015 Smt. Vijay Shri Vs. 1. Devender Kumar
2. The State convict has faced trial for about 9 years and has also suffered on account of complainant and his children having broken all ties with him and that he does not have any criminal record and circumstances of convict do not warrant sending him to imprisonment.
11. While sentencing the convict for offence under Section 498A IPC, vide impugned order dated 06.06.2014, Ld. MM has extended benefit of Probation of Offender Act, 1958 to the convict.
12. Section 4 (1) of the Probation of Offenders Act, 1958 provides:
Power of court to release certain offenders on probation of good conduct .(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 behaviour:
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2. The State 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.
13. Section 5 of the Probation of Offenders Act, 1958 provides:
Power of court to require released offenders to pay compensation and costs. (1) The court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay
(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and
(b) such costs of the proceedings as the court thinks reasonable.
(2) The amount ordered to be paid under subsection (1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code. (3) A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as compensation under subsection (1) in awarding damages.
14. Section 361 Cr.P.C. Provides:
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2. The State Special reasons to be recorded in certain cases Where in any case the Court could have dealt with
(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 ( 20 of 1958), or
(b) a youthful offender under the Children Act, 1960 ( 60 of 1960) , or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.
15. The convict was stated to be 54 years of age at the time of passing of order on sentence and was not a previous convict and also looking at the fact that the convict has been sufficiently punished by his own family as the family of the convict has broken ties with him and on account of looking at the characteristic and antecedents of convict, Ld. MM extended the benefit of the Probation of Offenders Act in view of the mandate as contained in Section 361 Cr.P.C. as Ld. MM was of the view that no purpose would be served by sending the convict behind the Bar.
16. The appellant feels aggrieved by the fact that respondent no. 1 has not been sentenced to imprisonment and he has been extended the benefit of Probation of Offender Act, 1958. In this context, it is necessary to examine the purpose of inflicting CA No: 12/2014 Page 7 of 10 D.O.O. 22.05.2015 Smt. Vijay Shri Vs. 1. Devender Kumar
2. The State punishment. Broadly speaking the punishment is inflicted to protect the society from undesirable elements, by deterring potential offenders, by preventing the actual offenders from committing further offences and for transforming the convicts into law abiding citizens.
17. The human transgressions have been punished in various ways throughout history which included death, Slavery, corporal punishment, imprisonment, community service and forfeiture of property etc.. Some civil sanctions are also punitive in nature.
18. The kinds of punishment and in respect to the purposes served by them punishment can be divided as :
(i) Deterrent
(ii) Preventive
(iii) Retributive
(iv) Reformative
(v) Expiatory
19. Theories of punishment can be divided into two general philosophies : Utilitarian and Retributive. The utilitarian theory of punishment seeks to punish offenders to discourage, or 'deter', future wrongdoing. The Retributive theory seeks to punish offenders because they deserve to be punished.
20. As per utilitarian philosophy, laws should be used to maximize the happiness of society and crime and punishment are inconsistent with happiness and they should be kept to a minimum. The utilitarians endeavour to inflict only as much CA No: 12/2014 Page 8 of 10 D.O.O. 22.05.2015 Smt. Vijay Shri Vs. 1. Devender Kumar
2. The State punishment as is required to prevent future crimes. The utilitarian recognizes that the punishment has consequences for both the offender and society and holds that the total good produced by the punishment should exceed the total evil i.e. Punishment should not be unlimited. Rehabilitation is another utilitarian rationale for punishment.
21. As per Retributive theory, offenders are punished for criminal behavior because they deserve punishment as criminal behaviour upsets the peaceful balance of society and punishment helps to restore the balance. The retributive theory focuses on the crime itself as the reason for imposing punishment whereas the utilitarian theory looks forward by basing punishment on social benefits.
22. However, our legal system shows its adherence to utilitarian ideals in the creation of systems such as Probation and Parole. These systems seek to limit punishment to the extent necessary to protect society.
23. The respondent no. 1 and appellant are in a matrimonial bond since 07.02.1984 and they cohabitated as husband and wife for 20 years during which period three children were born out of their wedlock. The family of Respondent No. 1 i.e. Appellant and his three children are stated to have broken all ties with respondent no. 1 and they have been residing separately from respondent no. 1 since the year 2005. Respondent no. 1 has faced protracted trial for about 9 years and is not a previous convict. At present the respondent no. 1 stated to be about 55 CA No: 12/2014 Page 9 of 10 D.O.O. 22.05.2015 Smt. Vijay Shri Vs. 1. Devender Kumar
2. The State years of age and stated to be practicing in Ayurvedic system of medicine.
24. Looking at the circumstances of the case, including the nature of offence and the character of the offender, I find no infirmity in the impugned order of Ld. MM by which benefit of Probation of Offenders Act were extended to the convict ( Respondent no. 1). However, looking at the sufferings of appellant, it would be appropriate that respondent no. 1 is directed to pay another sum of Rs. One lac as compensation to the appellant , in default of which Respondent no. 1 shall undergo Simple Imprisonment for a period of one month. The compensation amount shall be paid by the Respondent no. 1 to the appellant on 02.06.2015 before the Trial Court failing which Trial Court shall issue appropriate process for securing presence of convict /Respondent no. 1 for serving the sentence awarded to him. In case appellant does not appear before the Trial Court on 02.06.2015 for receiving the compensation amount , the same shall be deposited in the Trial Court and shall be released to the appellant on moving appropriate application in this regard.
25. The appeal stands disposed of accordingly. TCR be sent back along with copy of this judgment. Appeal file be consigned to record room.
Announced in the open (HARISH DUDANI)
Court on 22. 05.2015 Special Judge,( PC Act) CBII
Dwarka Courts, New Delhi.
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