Gauhati High Court
Crl.Rev.P./501/2012 on 27 March, 2025
GAHC010009182012
2025:GAU-AS:3717
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL. REV. P NO.501/2012
1. Sri Rajib Gogoi,
S/ o- Sri Jogen Gogoi,
R/ o- Padumoni Kachugaon,
P/ o- Pulibor, Mouza- Moukhuwa,
P.S- Golaghat,
District- Golaghat (Assam).
2. Sri Bubul Saikia,
S/ o- Sri Bhalua Saikia,
R/ o- Padumoni Kachugaon,
P/ o- Pulibor, Mouza- Moukhuwa,
P.S- Golaghat,
District- Golaghat (Assam).
3. Sri Purnananda Gohain,
S/ o- Late Cheniram Gohain,
R/ o- Padumoni,
P/ o- Padumoni,
Mouza- Moukhuwa,
P.S- Golaghat,
District- Golaghat (Assam).
.......Petitioners
Page 1 of 18
-Versus-
The State of Assam
.......Respondent.
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioners : Mr. T. J. Mahanta, Senior Counsel
assisted by Mr. Tarun Gogoi, Advocate.
For the Respondent(s) : Mr. P. S. Lahkar, Additional Public
Prosecutor, Assam.
Date of Hearing : 21.03.2025, 25.03.2025 &
27.03.2025
Date of Judgment : 27.03.2025 .
JUDGMENT & ORDER (ORAL)
Heard Mr. T. J. Mahanta, learned Senior Counsel assisted by Mr. Tarun Gogoi, learned Counsel for the petitioners. Also heard Mr. P. S. Lahkar, learned Additional Public Prosecutor, Assam for the State respondent.
2. This application is filed under Section 401, read with Section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") challenging the judgment dated 22.08.2008 passed by the learned Chief Judicial Magistrate, Golaghat (hereinafter referred to as the "trial Court") in G.R. Case No. 05/ 2007, wherein the petitioners were convicted under Section 341/ 323/ 34 of the I ndian Penal Code (hereinafter referred to as "I PC") Page 2 of 18 and sentenced to pay fine of Rs. 400/ - each under Section 341 of I PC in default of payment of fine Simple I mprisonment for 15 days, and also Rigorous I mprisonment for 3 months each and fine of Rs. 500/ - each under Section 323 of the I PC, in default of payment of fine, Simple I mprisonment for 15 days, and judgment and order dated 13.07.2012 passed in Criminal Appeal No. 42/ 2008 passed by the learned Session Judge, Golaghat (hereinafter referred to as the "appellate Court") whereby the appeal preferred by the petitioners was dismissed.
3. The brief facts of the case is that on 01.01.2007 one Sri Pradyut Hazarika (informant) had lodged an F.I .R. at Dhekial Police Outpost stating inter alia that on the same day at around 3.30 p.m. while he along with his friends Sri I ndrajit Neog, Sri Rajesh Agarwala and Sri Shyamal Sengupta @ Bapi were on their way to his petrol pump at Kuralguri, one jeep in which around 5 to 6 persons came towards them and did not let them cross and therefore, they had to stop their vehicle by the side of the road. I t is further alleged that when they stopped at the side of the road, a boy came down from the said jeep and had administered a punch on the right eye of one of his friend Sri I ndrajit Neog for which his friend had sustained serious injuries. I t is further alleged that his other friend Sri Rajesh Agarwala was also assaulted by them for which he lost his mobile phone. I t is further alleged that thereafter, they had been taken to a house Page 3 of 18 nearby and were being confined there, from where police later on rescued them.
4. An F.I .R. was accordingly registered as Golaghat P.S. Case No. 04/ 2007, under Section 147/ 325/ 342 of I PC. Upon investigation being completed, the I nvestigating Officer submitted Charge-sheet under Section 147/ 325/ 342 of I PC against the petitioners. Thereafter, the petitioners appeared before the trial Court, whereafter the trial Court framed charge under Section 341/ 323/ 34 of I PC and conducted the trial. During trial, the prosecution examined as many as 9(nine) witnesses in support of their case and defence examined none. After completion of trial and upon hearing both the parties, the trial Court by judgment & order dated 22.08.2008 convicted the petitioners under Section 341/ 323/ 34 of I PC and sentenced them thereof. Being aggrieved, the petitioners filed an appeal before the appellate Court, wherein the appellate Court was pleased to dismiss the appeal and upheld the conviction and sentence passed by the trial Court. Situated thus, the present revision petition has been filed.
5. Mr. T. J. Mahanta, learned Senior Counsel for the petitioner submits that he is not arguing the matter on merit of the conviction and shall confine his submission in the appeal in respect of the order of sentence. He further submits that the petitioners have not been convicted previously for any offence and that they are first time offenders. He further submits that the offence appears to Page 4 of 18 have been committed in the heat of the moment and the petitioners did not know the informant/ victims prior to the incident. He further submits that it has also come out from the evidences that after the incident, one of the petitioners had taken the victims to the house where water was also given. He further submits that the injuries are also simple in nature. Therefore, in the aforesaid backdrop he submits that the benefit of Section 360 of Cr.P.C. and Probation of Offenders Act, 1958 (hereinafter referred to as "Act, 1958") ought to have been given in the facts and circumstances of the case or the petitioners ought to have been punished only with fine as permissible under Section 323 of I PC. He further submits that the trial Court while rejecting the benefit under Section 360 of Cr.P.C did not consider the factors favourable to the petitioners. He further submits that in the appellate Court judgment, there is no any discussion about granting benefit of Section 360 of Cr.P.C./ Act, 1958. I n support of the aforesaid submission, he relies upon the following decisions:
(i) Amit Kapoor Vs. Ramesh Chander and another, reported in (2012) 9 SCC 460.
(ii) Sitaram Paswan and another Vs. State of Bihar, reported in AIR 2005 Supreme Court 3534
(iii) Ratul Bhuyan Vs. The State of Assam, in Crl.Rev.P./383/2013. ( Gauhati High Court ) Page 5 of 18
(iv) Abdur Rahman Mandal and Vs. The State of Assam, in Crl.Rev.P./273/2009. ( Gauhati High Court )
6. Per contra, Mr. P. S. Lahkar, learned Additional Public Prosecutor, Assam, for the State respondent also in his usual fairness submits that though the trial Court has held the injuries to be simple in nature, yet has mechanically rejected the prayer under the Act, 1958 and Section 360 of Cr.P.C. He further submits that it is clearly discernible from the evidence that there was no previous enmity between the petitioners and the informant & the victims.
7. I have given my prudent consideration to the arguments advanced by the learned Counsels for the contending parties and perused the material available on record. I have also considered the case laws submitted at the bar.
8. This Court after perusal of the material available on record has not found any patent error or illegality in passing the judgments. I t appears that the arguments of both the sides are as regards the benefit provided under Section 360 of Cr.P.C. and the Act, 1958. Therefore, without going into the merits of the case any further, this Court will now deal with the entitlement of the petitioner of the benefit under the Act, 1958.
9. Apt to refer to Section 360 of Cr.P.C. which reads as hereunder: -Page 6 of 18
"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). (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 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 Page 7 of 18 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 :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 Courts 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 recognisance, 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 the Probation of Offenders Act, 1958 (20 of 1958) or the Children Act, 1960 (60 or 1960), or any other law for the time being in force for the Page 8 of 18 treatment, training or rehabilitation of youthful offenders."
10. Reading of Section 360 of Cr.P.C. sub-section (4) it appears that an order under Section 360 of Cr.P.C directing release of an accused person on probation of good conduct or after admonition can also be made by appellate Court or by the High Court or by the Court of Sessions while exercising its power of revision.
11. Reference in this regard is made to the decision of the Apex Court in the case of Sitaram Paswan Vs. State of Bihar (Supra). Paragraph 8 of the aforesaid judgment is reproduced hereunder for ready reference: -
"8.Section 4 of the Probation of Offenders Act empowers the Court to release a convicted person on his entering into a bond with or without sureties on probation when he is found guilty of committing of any offence not punishable with death or imprisonment for life. Relevant portion of Section 4 of the Probation of Offenders Act, 1958 reads thus:
'Section 4 Power of Court to release certain offenders on probation of good conduct- (1) Whenany 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 Page 9 of 18 meantime to keep the peace and be of good behaviour.' For exercising the power which is discretionary, the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. The benefit available to the accused under Section 4 of the Probation of Offenders Act is subject to the limitation embodied in the provisions and the word "may" clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation of Offenders Act, having regard to the nature of the offence and the character of the offender and overall circumstances of the case. The powers under Section 4 of the Probation of Offenders Act vest with the Court when any person is found guilty of the offence committed, not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Court thinks that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the Court even at the appellate or revisional stage and also by this Court while hearing appeal under Article 136 of the Constitution of India."
12. Reading of the aforesaid judgment it is clear that the power under Section 360 of Cr.P.C. and Section 4 of the Act, 1958 can be exercised by the Court while finding the person guilty and if the Court thinks that having regard to the circumstances of the case including the nature of the offence and the character of the offender benefit should be extended to the accused, the power Page 10 of 18 can be exercised by the Court even at the appellate or revisional stage.
13. Apt to refer to Section 4 of the Act, 1958 which is reproduced hereunder for ready reference: -
"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 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 of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one Page 11 of 18 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 repetition 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."
14. Reading of the aforesaid provision of the Act, 1958, it appears that the power is discretionary and the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. I t is thus imperative for the Court while considering the nature of the offence to take a realistic view of the gravity and the impact which the offence had on the victim. This power is vested with the Court when any person is found guilty of the offence committed, not punishment with death or imprisonment for life. Thus, if the Court thinks that having regard to the circumstances of the case including the nature of the offence and the character of the offender, benefit may be extended to the accused.
Page 12 of 1815. Reference is also made to the decision of this Co- ordinate bench in the case of Ratul Bhuyan (Supra) wherein this Court in exercise of the revisional power after considering the nature of the offence in the facts of that case gave the benefit of the Act, 1958 to the petitioner. Paragraphs 16, 17 and 18 of the aforesaid decision are reproduced hereunder for ready reference: -
"16. It is by now well settled that Act, 1958 is a milestone in progress of modern liberal trend of reform in the field of Penology. It is the result of recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. It was also held by Hon'ble Apex Court in the case of Ved Prakash Vs. State of Haryana reported in 1981 1 SCC 447, that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial court should collect material necessary to award a just punishment in circumstances. It was further held that the social background and the personal factors of the crime doer are very relevant in this regard.
17. In the case of Sita Ram Paswan Vs. State of Bihar reported in AIR 2005 SC 3534, the Hon'ble Apex Court has laid down certain principle for exercise of discretionary power under the Act and the consideration required. The hon'ble Apex Court opined that while exercising the discretionary power under the Act 1958, the court is to consider the circumstances of the case, the nature of offence and the character of the offender. While considering the nature of the offence, the court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. It was concluded by the hon'ble Apex Court that the benefit available to the accused under section 4 of the Act, 1958 is subject to the Limitation embodied in the provision and the word 'may' clearly indicates that the discretion is vested Page 13 of 18 with the court whether to release the offender in exercise of power under section3/4 of the Act, 1958, having regard to the nature of the offence, the character of the offender and overall circumstances of the case.
18. It was further held by the hon'ble Apex Court that such power can be exercised by the court even at the appellate or revisional stage or also by Apex Court hearing appeal under Article 136 of the Constitution of India."
16. I n the present case it appears that the alleged offence was committed on 01.01.2007 and it is crystal clear from the judgment & order of the trial Court that the offence is not considered as heinous or premeditated. I t appears that upon sudden quarrel between the petitioners and the victims on the road, the petitioners dealt the blow. I t further appears that the petitioners have not committed any similar nature of offence in any point of law i.e. they have no past criminal record. I t further appears that the petitioners have been suffering since last 18 years litigating in the Court due to the alleged incident which happened in the year 2007 when they were young boys. I t further appears that injuries are simple in nature and there is no previous criminal background of the petitioners as revealed from the trial Court judgment and occurrence took place due to the misunderstanding.
17. Apt to reproduce paragraphs 15 and 26 of the judgment of the trial Court, which is reproduced hereunder for ready reference:
Page 14 of 18"(15) Now, having gone through the evidence of P.W.5. coupled with the evidence of P.W.1, informant Pradyut Hazarika, an eye witness, I find that the fact that injured Rajesh Agarwalla and Indrajit Neog had sustained injuries on 01.01.07.
stands substantiated and though definite opinion could not be given by the M/o in respect of the injury he had found on the person of Rajesh Agarwalla and Indrajit Neog but then, in view of the opinion of the M.O. regarding the weapon used in causing those injuries and in view of the evidence of P.W.1 Pradyut Hazarika, I hold that the injuries were simple in nature.
(26) Accused persons are heard on the sentence.Considering the nature of injuries, proved to have been sustained by the injureds, I hold that the accused persons could not be extended the benefit of release on probation of good conduct u/s 4 of the Probation of Offender's Act. However, considering the fact that the accused persons were not habituated offenders and since they were not proved to have been convicted earlier, the accused persons are sentenced to fine of Rs. 400/-(Rupees four hundred) each u/s 341 IPC, in default of payment of fine S.I. for 15 days. The accused persons are also sentenced to R.I. for 3(three) months each and fine of 500/-(Rupees five hundred)each u/s 323 IPC, in default of payment of fine S.I. for 15 days."
18. Reading of the aforesaid paragraphs of the judgment of the trial Court it appears that though the trial Court has held the injuries simple, observed that the benefit of release on probation of good conduct under Section 4 of the Act, 1958 cannot be extended to the petitioners. I t further appears that the trial Court by considering the fact that the accused persons were not habitual offenders and since they were not proved to have convicted earlier, they were sentenced to fine of Rs.
Page 15 of 18400/ - each under Section 341 of I PC, in default of imprisonment of fine Simple I mprisonment for 15 days and also sentenced to Rigorous I mprisonment for 3 months each and fine of Rs. 500/ - each under Section 323 of the I PC, in default of payment of fine, Simple I mprisonment for 15 days. I t is thus apparent that the reasons for rejecting benefit of Section 4 of the Act 1958 and Section 360 of Cr.P.C. was not reflected in the judgment of the trial Court. On the contrary, the trial Court has clearly recorded that the petitioners are not habitual offenders and the nature of injury is simple and that the petitioners were not convicted earlier in any other criminal case. Perusal of the appellate Court judgment it appears that despite the appellate Court having the powers to give the benefit of Section 360 of Cr.P.C. and Section 4 of the Act, 1958 did not consider the same. I t is thus apparent that though the trial Court exercised its discretion under the Act, 1958, however, it did not cite any reason for rejection of such benefit.
19. I n the considered opinion of this Court, such is a failure of exercise of jurisdiction by the learned trial Court. A court may not grant benefit in the given facts of the case, however, considerations must be given. Considering the above stated facts and without entering into the merits of the judgment impugned and considering the relevant provision of settled proposition of law and the period lapsed from the date of incident and also that the incident occurred without any Page 16 of 18 premeditation of mind and that they did not know each other and that the punishment awarded for the offences, I am of the considered opinion that this is a fit case where the benefit of the Act, 1958 should be provided to the petitioners by this Court in exercise of its revisional powers.
20. Accordingly, for the reasons recorded hereinabove, the petitioners namely Sri Rajib Gogoi, Sri Bubul Saikia and Sri Purnananda Gohain are given benefit under the Act, 1958 and the sentence is modified to the effect that instead of sending the petitioners to jail, they should be given the benefit of Section 4 of the Act, 1958.
21. As such, it is directed that the petitioners will file two sureties to the tune of Rs. 15,000/ - each along with personal bond before the learned Chief Judicial Magistrate, Golaghat, and undertake to the effect that the petitioners shall keep peace and good behavior during the period of 6(six) months from today. The aforesaid bond shall be filed by the petitioners within a period of 1(one) month from the date of this judgment.
22. Accordingly, the revision petition stands allowed and is disposed of.
23. Before parting with the records, this Court deeply appreciate the assistance and argument advanced by Mr. Tarun Gogoi, learned Counsel for the petitioners before the leading Counsel, Mr. T. J. Mahanta, learned Senior Counsel joined the hearing for the petitioners.
Page 17 of 1824. Return the case record.
JUDGE Comparing Assistant Page 18 of 18