Punjab-Haryana High Court
Kabal Singh vs State Of Punjab on 21 November, 2014
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Revn. No. 2739 of 2014 (O&M) (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Revn. No. 2739 of 2014 (O&M)
DATE OF DECISION: 21.11.2014
Kabal Singh ..........Petitioner
Versus
State of Punjab ..........Respondent
BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
1. Whether reporters of local newspaper may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. BPS Virk, Advocate
for the petitioner.
Ms. Ritu Punj, Addl. A.G., Punjab.
Mr. Sunil Garg, Advocate
for the complainant.
****
DAYA CHAUDHARY, J.
Crl. Misc. No. 35675 of 2014
Application is allowed as prayed for.
Crl. Revn. No.2739 of 2014 The present revision petition has been filed against judgment dated 25.7.2014 passed by Additional Sessions Judge, Patiala vide which the appeal filed by the petitioner against judgment and order dated 24.5.2013 passed by Sub Divisional Judicial Magistrate, Samana convicting and sentencing the petitioner to undergo RI for maximum period of two years under Sections 452,324,323 read with Section 34 IPC, has POOJA SHARMA 2014.12.09 16:51 I attest to the accuracy and integrity of this document Crl. Revn. No. 2739 of 2014 (O&M) (2) been dismissed.
The petitioner along with co-accused, namely, Sahib Singh and Nirmal Singh faced trial in case FIR No. 182 dated 18.6.2006 registered under Sections 323/324/452 read with Section 34 IPC. All the accused were convicted and sentenced by Sub Divisional Judicial Magistrate, Samana vide judgment dated 24.5.2013. Against the said judgment of conviction and order of sentence, petitioner and co-convict filed an appeal before Additional Sessions Judge, Patiala. Co-accused of the petitioner, namely, Sahib Singh and Nirmal Singh were given benefit of Probation of Offenders Act, 1958 by taking into consideration their age and conduct as they were not previous convicts and were facing trial for about eight years. The appeal qua to the present petitioner was dismissed but he was not granted the benefit of probation.
Learned counsel for the petitioner contends that the case of the petitioner is also at par with other co-convicts, who have already been granted benefit of probation but the said concession was declined to him. Learned counsel further contends that the petitioner was not present at the time of occurrence and has falsely been implicated in this case because of the property dispute. Even the motive behind the occurrence was not proved on record before the courts below. The conviction was based on the statements of entrusted witnesses without any corroboration of the independent witness. Learned counsel also contends that no offence is made out under Section 452 IPC as the complainant has failed to prove the ownership of the house where occurrence took place. There was delay in lodging of the FIR and the same has not been considered by both the Courts below. Learned counsel further submits that co-convicts of the petitioner were released on probation on the ground that they are first offender and are in the age group of 22 to 27 years at the time of alleged POOJA SHARMA 2014.12.09 16:51 I attest to the accuracy and integrity of this document Crl. Revn. No. 2739 of 2014 (O&M) (3) occurrence. Learned counsel has also relied upon the judgments of this Court in Safaat Khan and another Vs. State of Haryana 1984 (1) RCR (Criminal) 623, Kuldip Singh @ Pappi Singh and Pappa 1983 (1) RCR (Criminal) 217, State of Punjab Vs. Kuldip Singh and others 2007 (2) RCR (Criminal) 670 and Raj Singh and another Vs. State of Punjab 2011 (2) RCR (Criminal) 861, in support of his contentions.
Learned counsel for the respondent-State as well as complainant submit that judgments of both the Courts below are self- explanatory and detailed one and are based on proper appreciation of evidence and no interference is required by this Court. Learned counsel for the State also submits that the petitioner was not entitled for benefit of probation as two more cases were also registered against him as reflected in the custody certificate filed before this Court. The petitioner is a habitual offender and his conduct is to be considered for grant of benefit of probation.
Heard the arguments advanced by learned counsel for the parties and have also perused judgments of both the courts below.
After perusal of judgments of both the Courts below as well as the relevant record of the case, when the Court was not inclined to interfere, learned counsel for the petitioner has restricted his prayer qua to release of the petitioner on probation like co-convicts.
On the last date of hearing, the case was adjourned on the request of learned counsel for the petitioner to address arguments on the point as to how the petitioner was entitled for release on probation inspite of the fact that two criminal cases are pending against him. Although learned counsel for the petitioner has relied upon certain judgments to support his arguments but in those cases no criminal case was pending against the accused. Sections 3 and 4 of Probation of Offenders Act, 1958, POOJA SHARMA 2014.12.09 16:51 I attest to the accuracy and integrity of this document Crl. Revn. No. 2739 of 2014 (O&M) (4) which are relevant for release of an accused on probation are reproduced as under:-
3. Power of court to release certain offenders after admonition.--When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition. tc "3.
Power of court to release certain offenders after admonition.
--When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the POOJA SHARMA 2014.12.09 16:51 I attest to the accuracy and integrity of this document Crl. Revn. No. 2739 of 2014 (O&M) (5) nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition."
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 POOJA SHARMA 2014.12.09 16:51 I attest to the accuracy and integrity of this document Crl. Revn. No. 2739 of 2014 (O&M) (6) 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 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.
A perusal of aforesaid provisions shows that for release on probation, the good conduct of the accused-petitioner is to be seen subject to limitations laid down in the provisions. The word 'may' does not mean POOJA SHARMA 2014.12.09 16:51 I attest to the accuracy and integrity of this document Crl. Revn. No. 2739 of 2014 (O&M) (7) that the accused has right to be released on probation but for that the good conduct as well as past conduct is to be taken into consideration. It is a discretionary remedy which is to be exercised keeping in view the act and conduct of the accused.
In the present case, the petitioner is involved in two more criminal cases and it cannot be said that he is having good conduct. There is no merit in the contentions raised by learned counsel for the petitioner and the petition being devoid of any merit is hereby dismissed.
21.11.2014 (DAYA CHAUDHARY)
pooja JUDGE
POOJA SHARMA
2014.12.09 16:51
I attest to the accuracy and
integrity of this document