Iqbal Singh and Others vs State of Punjab

Ram Chand Gupta, J.—The present revision petition has been filed against judgment dated 01.06.2012 rendered by learned Sessions Judge, Moga dismissing appeal filed by the present petitioners against judgment of conviction and order of sentence dated 20.09.2011 passed by learned Additional Chief Judicial Magistrate, Moga vide which petitioners were convicted and sentenced as under:-

I have heard learned counsel for the parties and have gone through the whole record including both the judgments rendered by learned courts below.

Brief allegations are that, Malkiat Singh-complainant was working as Siri with petitioners no. 1 and 2, Iqbal Singh and Jasvir Singh @Jassa, respectively. However, after harvesting the crop, he fell ill and failed to do work in the fields of petitioners-accused. Hence, he was given beatings by petitioners-accused, Iqbal Singh and Jasvir Singh @ Jassa and kept confined in a room for 15-20 days. During the day time forcible work used to be taken from him and they also used to give beatings to him. However, somehow he succeeded in escaping from their custody on 07.06.2012 and reached near the house of his son-in-law, Chhinda Singh. However, he was chased by all the present petitioners-accused while petitioner-Jasvir Singh @ Jassa armed with pistol, petitioner-Iqbal Singh armed with double barrel gun and petitioner-Chand Singh armed with stick. He was again abducted in a car and was brought to their house where he was again confined in a room. When he resisted, beatings were given to him. However, again he succeeded in escaping from their custody on the next day and narrated whole incident to his son-in-law, Chhinda Singh, who got him admitted in the hospital. Petitioners were held guilty by learned trial court. Their appeal against judgment of conviction and order of sentence was dismissed by learned appellate court.

It has been contended by learned senior counsel for the petitioners that he does not want to press the present revision petition so far as the judgment of conviction as passed by learned trial court and as affirmed by learned appellate court is concerned and that he only wants to press this revision petition against the order of sentence.

I have also gone through the judgments rendered by both the courts below which are based on evidence. Hence, so far as judgment of conviction passed by learned courts below is concerned, the revision petition is dismissed and the judgments passed by learned courts below are, hereby, affirmed.

However, it has been contended by learned senior counsel for the petitioners that they are not previous convicts and that they are farmers. It is further submitted that dispute was regarding getting work from Siri employed by petitioners-accused. It is further contended that all the petitioners have already undergone more than five months of the sentence out of one year awarded by the courts below. It is further contended that maximum imprisonment provided for offence u/s 323 IPC is one year whereas maximum imprisonment provided for offence u/s 342 IPC is also one year and for offence u/s 343 IPC is two years and for offences under Sections 365/506 IPC is 7 years. Hence, it is contended that petitioners should have been given the benefit under the Probation of Offenders Act, 1958 by learned courts below and however, without assigning any special reasons, the said benefit has been denied to the petitioners.

It is pertinent to reproduce Sections 360 and 361 of Code of Criminal Procedure, which read as under:-

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 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 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 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.

Special reasons to be recorded in certain cases.--

Where in any case the Court could have dealt with,-

(a) an accused person u/s 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.

Admittedly, petitioners-accused are not previous convicts. It is also a case of simple injury. They have already undergone five months of the sentence out of one year awarded. They should have been given benefit of probation u/s 360 Cr. P.C. or under the Probation of Offenders Act, 1958 by learned courts below. However, the said benefit has been denied to them by the courts below without giving any special reasons as required u/s 361 Cr. P.C.

Hence, in view of these facts, the present revision petition is partly accepted. While maintaining the judgment of conviction as passed by learned Additional Chief Judicial Magistrate, Moga and as affirmed by learned Sessions Judge, Moga against the present petitioners, the order of sentence is, hereby, set aside.

Petitioners are directed to be released on probation on their furnishing probation bonds of good conduct for a period of one year to the satisfaction of learned trial court. During this period, they will keep peace and be of good behaviour and be called upon to receive the sentence in case of violation of any condition of the bond.

In addition to it, they are also directed to deposit Rs. 10,000/- each as compensation in the trial court for being paid to complainant-injured. Disposed of accordingly.