Durga Prasad Jain vs State of Rajasthan

Munishwar Nath Bhandari, J.—By this criminal revision petition, challenge is made to the order of conviction and sentence so as the order passed in appeal. Learned counsel for petitioner submits that main allegation is against accused Ved Prakash and Surendra Singh Yadav yet petitioner has been convicted for offence u/s 420 and 120B IPC. The allegation against other co-accused is for cheating for making appointment in the Railways. All transactions for the purpose of appointment in the Railways were made by accused Ved Prakash. No role is assigned to petitioner-Durga Prasad Jain other than for taking doctor and nurses for medical examination of the candidates/complainant. Revision petitioner was not knowing that medical camp is arranged for employment in Railways thus he has been wrongly made accused and convicted. While passing the order of conviction, the court below failed to consider provisions of sections 360 and 361 Cr.P.C. more so when petitioner was entitled for probation under the Probation of Offenders Act, 1958. Looking to the aforesaid and the first offence of the petitioner, he is entitled to benefit of probation even if the order of conviction is maintained.

Learned PP opposed the revision petition and submits that special role has been assigned to the petitioner for commission of offence under sections 420 and 120B IPC. The trial court considered the evidence and found petitioner to be involved in the matter and passed order of conviction.

So far as the present petitioner is concerned, he has been convicted u/s 420 read with section 120B IPC and sentenced for one year and six months'' rigorous imprisonment with fine of Rs. 5,000/-, in default of payment of fine, to further undergo three months'' rigorous imprisonment, otherwise, acquitted of the other offences. The trial court has not extended benefit of probation though no reason has been assigned for that.

Now this court may not extend benefit of probation to the petitioner, rather, maintain order of conviction and sentence.

I have considered rival submissions of learned counsel for the parties and scanned the record very carefully.

I find that so far as conviction of the petitioner is concerned, trial court has meticulously examined the evidence and finding the case against the petitioner, convicted him for offence u/s 420 read with section 120B IPC and sentenced him for one year and six months'' RI and a fine of Rs. 5000/-, in default of payment of fine, to further undergo three months'' RI. In the light of the aforesaid and as the arguments are not being made against the order of conviction, I am not inclined to interfere in the order of conviction.

The question now comes regarding provisions of section 360 and 361 Cr.P.C. read with section 357 of the Probation of Offenders Act, 1958. Sections 360 and 361 provide certain benefits to the convicts, who are not under 21 years of age and not sentenced to the term more than seven years. Above benefit could have been extended to the petitioner, however, instead thereof, at once he was punished. As per section 361 Cr.P.C. court has to assign special reasons if the benefit u/s 360 Cr.P.C. or under Probation of Offenders Act is denied.

I find that trial court so as the appellate court have not assigned any reason to deny benefit of probation or application of provisions of section 360 Cr.P.C. The courts below have also ignored the aforesaid aspect though there exist mandate u/s 361 Cr.P.C. if benefit of probation is to be denied. As stated by learned counsel for the petitioner, it was the first offence of the petitioner and maximum sentence for the offence u/s 420 read with 120B IPC is seven years. Looking to the facts of this case and sections 360 and 361 Cr.P.C. the Probation of Offenders Act, 1958 applies to this case. In the background aforesaid, the court below should have extended benefit of probation and if not to be granted such benefit, then to give specific reasons. Since no reason has been assigned thus sentence of the petitioner cannot be maintained, rather, petitioner is extended benefit of probation looking to his first offence.

Accordingly, order of the appellate court so as the trial court for convicting the petitioner is upheld. However, sentence awarded to the petitioner is set aside. Instead, he is granted benefit of probation u/s 4 of the Probation of Offenders Act. I order to release the accused petitioner on probation with the condition that he shall furnish a personal bond of Rs. 10,000/- along with a surety in the like amount to the satisfaction of the trial court giving undertaking to maintain peace and maintain good behaviour for a period of one year. The petitioner shall furnish required bail bonds within a period of fifteen days from today. In the light of section 12 of the Probation of Offenders Act, 1958, it is also directed that accused petitioner shall not suffer any disqualification only by reason of his conviction in the present case. With the aforesaid, criminal revision petition stands disposed of. Record be sent back immediately.