Mawa Singh and ors. vs Darbara Singh and ors.

Pritpal Singh. J.

The learned trial Court convicted Darbara Singh, Karamjit Singh, Mukhtiar Singh, Gurnam Singh and Hans Raj under Sections 325, 323, 148 read with section 149 of the Indian Penal Code and sentenced them to various terms of imprisonment.

In appeal before the learned Additional Sessions Judge, Patiala, Darbara Singh, Mukhtiar Singh and Gurmel Singh were acquitted. The conviction of Karamjit Singh and Hans Raj was affirmed. They were released on probation for two years under section 4 of the Probation of Offenders Act (hereinafter called the Act).

The present revision has been filed by the complainants against the judgment of the learned Additional Sessions Judge, Patiala, with the prayer that acquittal of Darbara Singh, Mukhtiar Singh and Gurmel Singh be set aside and that suitable punishment be awarded to them as well as to Karamjit Singh and Hans Raj.

I do not find the least reason to interfere with the judgment of the lower appellate Court regarding the acquittal of the respondents Darbara Singh, Mukhtiar Singh and Gurmel Singh. The appellate Court, on appraisal of evidence, has come to the conclusion that the prosecution has not been able to prove the charge against them. There is no legal Law in the appraisal of evidence in this regard. It is not open to this Court to reappraise the evidence in revision proceedings.

It is contended by the learned petitioner''s counsel that benefit of probation could not be granted to Karamjit Singh and Hans Raj respondents by the lower appellate Court without calling for the report of the Probation Officer in view of section 4(2) of the Act. There is no merit in this contention. The provisions of section 4 of the Act are as follows :

"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 subsection (1), the court shall take into consideration the report, if any, of the Probation Officer concerned in relation to the case."

The word if any" used in subsection, (2) indicate that it is not obligatory on the court to call for the report of the Probation Officer before invoking the provisions of subsection (1) in granting benefit of probation to a convict. The matter is further clarified by paying attention to the provisions of section 6 of the Act. This section deals with the offenders under 21 years of age and is in the following terms :

"6. Restrictions on imprisonment of offenders under twenty one years of age :

(a) When any person under twenty one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to "deal with him under Section 3 or Section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.

(2) For the purpose of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an offender referred to in subsection (1), the court shall call for a report from the Probation Officer and consider the report, if any, and any other information available to it relating to the character and physical and mental conditions of the offender."

Subsection (2) makes it incumbent upon the Court to call for a report from the Probation Officer for the purpose of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an offender below the age of 21 years. No such obstruction has been placed in subsection (2) of Section 4 of the Act.

The learned petitioners'' counsel relied upon a Division Bench judgment of this Court in State of Punjab v. Naib Singh, 1978 C.L.R, (Pb. & Har.) 264. In this judgment an observation in the nature of obiter was made that under Section 4(2) of, the Act it is necessary for the Court to call for the report of the Probation Officer. This observation, does not constitute ratio of the judgment. The question to be decided in that case was whether the injury caused by the offender fell under Section 326 or Section 324. Indian Penal Code. It was held that the provisions of Section 326 were attracted and as such the benefit of Probation could not be granted to the convict. The aforesaid observations regarding Section 4(2) of the Act were based on a decision of the Goa High Court in State v. Nequesh G. Shet Govenkar & another, A.I.K. 1970 Goa, Damon & Diu 49. It is significant that K.S. Tiwana, J., who was one of the members of the Division Bench, subsequently clarified the position in Dalip Kaur v. Dalip Singh (197377) Suppl. C.L.R. 454, by holding that the views taken in the case of Naquesh G. Shet Govenkar (supra) was not approved by a later judgment of our own Court in Lehari & another v. Amar Singh & others, 1974 C. L.R. (11) 411. In the later judgment it was observed or follows :

"With utmost respect, I am unable to agree with the view expressed by the learned Judge in State v. Naquesh G. Shet Govenkar and another, A.I.R. 1970 Goa, Dam. & Diu 49, that it is obligatory on the Court to call for and consider the report of the Probation Officer in terms of section 4 (2) and that it is a condition precedent to the legality or validity of the order passed under subsection (1) of section 4."

K. S. Tiwana, J., therefore, ruled that it was not imperative for the Court under section 4(2) of the Act to call for the report of the probation Officer as it was nowhere laid down in the mandatory form by way of compulsion to send for the report as is done by Section 6(2) of the Act.

It is within the discretion of the Court deciding the case to award proper sentence. This discretion cannot be interfered with unless there are compelling reasons to do so. In the present case I am unable to subscribe to the view that the learned appellate Court was not competent to grant the benefit of probation to the convicts without calling for the report of the Probation Officer. No interference in respect thereof is called for in the revisional jurisdiction of this Court.

For the reasons stated above, there is no merit in this revision and it is hereby dismissed.