Punjab-Haryana High Court
Akhtar & Another vs State Of Haryana on 19 February, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Revision No.4103 of 2012 (O&M) :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: February 19, 2013
Akhtar & another
...Petitioners
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr.Sarfraj Hussain, Advocate,
for the petitioners.
Ms.Shruti Jain, AAG, Haryana,
for the State.
*****
RANJIT SINGH, J.
On 8.9.2005, police received an information on admission of injured Hukam Singh at CHC, Ferozepur Jhirka. The Police Officer reached the place and after obtaining the opinion of the doctor, recorded the statement of injured person. Hukam Singh alleged that about 1½-2 years ago, he had purchased land measuring three acres from Kamruddin son of Rahim Khan, over which he has constructed a house near their fields. Akhtar having a string in his hand and Jamshed @ Khunta having a lathi came there. Kamruddin had stopped the complainant from cultivating the field for many days, but he did not desist and stating so, he said that he be taught a lesson. Jamshed caught hold of complainant's hands and Akhtar put a string on his body and tied him and confined in a Chaubara of their Criminal Revision No.4103 of 2012 (O&M) :2: house. Akhtar inflicted lathi blow on the left pindli. Jamshed sat on him and Akhtar inflicted another lathi blow beneath the knee of his right foot. The complainant started crying when his uncle reached from his field hearing the noise and rescued him. Assailants left the place while taking an amount of `500/- and one wrist watch mark HMT Kohinoor. The complainant was untied and taken to CHC, Ferozepur Jhirka. FIR under Sections 323, 342, 506 and 34 IPC was accordingly registered. During investigation, offence under Section 379 IPC was added. The accused were arrested and tried. All the accused have been found guilty and sentenced to suffer RI for two years under Section 379 IPC and one year under Sections 342 and 323 respectively. The petitioners filed an appeal against this order, but the Appellate Court upheld the order passed by the trial Court. The petitioners have now filed this revision petition.
Counsel for the petitioners has not pressed this revision on merits, but pleads for leniency. Counsel contends that one of the accused, who was convicted in this case, was extended the benefit of probation considering his age to be 85 years, whereas the trial Court did not extend the same concession to the present two petitioners without much justification.
I have perused the impugned order passed by the Judicial Magistrate. He though has considered the prayer of the petitioners for release on probation, but was of the opinion that this is not a fit case for release on probation of other convicts, except one who was 85 years old. The Appellate Court did not consider this aspect at all and has simply maintained the sentenced as imposed while Criminal Revision No.4103 of 2012 (O&M) :3: upholding the findings returned by the trial Court. In my view, the provisions of Sections 360 and 361 Cr.P.C. would mandate a Court to consider release of a person on probation and where the prayer is declined without recording much reasons, same would be violative of the provisions of Sections 360 and 361 Cr.P.C. In this regard, the counsel for the petitioners has placed before me Chandreshwar Sharma Versus State of Bihar, JT 2000(2) SC 36, where similar view is expressed. Here also, the appellant before the Hon'ble Supreme Court was convicted for offences under Sections 379 and 411 IPC and was sentenced to one year RI. The Appellate Court had affirmed the conviction but none of the forums had considered the question of applicability of Section 360 of the Code. The Hon'ble Supreme Court has held that while refusing to grant the benefit of Section 360, the Court has to record specific reasons in the judgment. Neither the trial Court nor the Appellate Court have recorded any reason for which the Courts did not consider it fit to release the petitioners on probation, they being first offenders.
The provisions of Section 360 Cr.P.C. are as under:-
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 Criminal Revision No.4103 of 2012 (O&M) :4: 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). (2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further Criminal Revision No.4103 of 2012 (O&M) :5: inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.
(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860 ), punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.
(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law:Criminal Revision No.4103 of 2012 (O&M) :6:
Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.
(6) The provisions of sections 121, 124 and 373 shall, so far as may be apply in the case of sureties offered in pursuance of the provisions of this section. (7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.
(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.
(10) Nothing in this section shall affect the provisions of Criminal Revision No.4103 of 2012 (O&M) :7: the Probation of Offenders Act, 1958 (20 of 1958 ), or 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.
This section clearly provides that when any person not under twenty-one years of age is convicted for 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 for an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender and 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. As per Section 361 Cr.P.C., it is a statutory mandate for the Courts convicting a person to record reasons. Section 361 Cr.P.C. provides that where the Court could have dealt with an accused under Section 360 or under the provisions of Probation of Offenders Act, but has not done so, it shall record in its decision and the special reasons for not having done so.
The Appellate Court in this case has apparently ignored the provisions of Sections 360 and 361 Cr.P.C. The trial Court did Criminal Revision No.4103 of 2012 (O&M) :8: record in its order that it is not a fit case for release of petitioners on probation except one of the accused, but failed to record any reason why it was not such a fit case for release if other conditions as contained under Section 360 Cr.P.C. were attracted. In such eventuality, it can be seen that the mandatory duty cast on a Magistrate as well as the Appellate Court has not been performed. I do not find that any infirmity standing against the petitioners for their release on probation. They are of a middle age. They have already suffered a custody of over two months. They are first offenders. The dispute appears to be relating to some land and they could not have gone there to commit an offence of theft. Otherwise, the allegations against the petitioners are under Section 323 IPC of having caused simple injuries.
In my view, it is a fit case for release of the petitioners on probation. It is ordered accordingly. The petitioners are directed to be released on probation for a good conduct instead of sentencing them. Since the petitioners are in custody, they be produced before the Chief Judicial Magistrate, Nuh immediately so as to enable them to enter into a bond with one surety to appear and receive the sentence when called upon during the period of two years for the purpose in question. The bond for this period shall be executed before the Sub Divisional Magistrate, Nuh within one month of this order.
The revision is accordingly disposed of.
February 19, 2013 ( RANJIT SINGH ) ramesh JUDGE