Mohammed Hanif vs The State of Rajasthan and Another

B.R. Arora, J.—This criminal revision petition is directed against the judgment dated March 19, 1987, passed by the Additional Sessions Judge No. 2, Jodhpur, by which the learned Additional Sessions Judge granted the benefit of probation to the accused-respondent No. 2, Mohammed Rashid.

Accused Mohammed Rashid was tried by the learned Chief Judicial Magistrate for offence Under Sections 452 and 324, I.P.C. The incident, which led to the-prosecution of the accused Mohammed Rashid, took place on June 25, 1980, when, according to the prosecution, Mohammed Hanif alongwith his wife had gone for the condolences to his uncle and there a quarrel ensued between Mohammed Rashid and Mohammed Hanif. Mohammed Hanif returned to his house and when he was talking with his wife, in the meanwhile the accused came there and knocked at the door. Mohammed Hanif opened the door and as soon as he opened the door, the accused Mohammed Rashid threw chillies-powder in his eyes and, also, inflicted injury to him with a knife. On the basis of this information, a First Information Report was lodged at the Police Station, Shastri Nagar, Jodhpur. The police, after necessary investigation, presented the challan Under Sections 307, 452 and 323, I.P.C. against the accused. The learned Magistrate committed the accused to stand trial to the Court of the District & Sessions Judge, Jodhpur, as the offence u/s 307, I.P.C. was exclusively triable by the learned Sessions Judge. But the learned Additional Sessions Judge considered the case and sent back the same u/s 228 Cr. P.C. for trial to the Court of the Chief Judicial Magistrate, as according to the learned Additional Sessions Judge, the charge u/s 307, I.P.C. cannot be framed. The accused Mohammed Rashid was, therefore, tried by the learned Chief Judicial Magistrate and after trial, the learned Magistrate convicted and sentenced the accused Under Sections 452 and 324, I.P.C. and awarded the sentence of three years'' rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo three months'' rigorous imprisonment u/s 452, I.P.C. The learned Chief Judicial Magistrate, also, sentenced the accused to undergo three years'' rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo three months rigorous imprisonment u/s 324, I.P.C. Both the sentences were directed to run concurrently. Dissatisfied with the judgment convicting and sentencing the accused, the accused preferred an appeal before the learned Sessions Judge, Jodhpur, which was ultimately decided by the learned Additional Sessions Judge No. 2, Jodhpur, who maintained the conviction Under Sections 452 and 324, I.P.C, but instead of sentencing the accused, he gave the benefit of probation to the accused-respondent. It is against this order, granting the benefit of probation to the accused Mohammed Rashid that the present revision petition has been filed by the complainant Mohammed Hanif.

I have heard the learned Counsel for the petitioner, the learned Public Prosecutor and the learned Counsel for the accused-respondent.

It is contended on behalf of the petitioner that the learned Additional Sessions Judge was not justified in giving the benefit of probation to the accused-respondent, and in giving the benefit of probation, the learned Additional Sessions Judge has not taken into consideration the reasons given by the trial Court for not granting the benefit of probation to the accused-respondent. It has further been argued that the report of the Probation Officer has not been obtained and as such in the absence of the report of the Probation Officer, the benefit of probation could not have been given to the accused-respondent. It was also argued that in giving the benefit of probation to the accused, the learned lower Court has completely ignored the injuries received by the petitioner and the fact that the petitioner remained in the hospital for about 24 days. Lastly, it was argued that the compensation awarded to the petitioner is most inadequate and it should be enhanced. The learned Public Prosecutor as well as the learned Counsel for the accused-respondent have, on the other hand, supported the judgment passed by the learned Additional Sessions Judge.

I have considered the rival submissions made by the counsel for the parties.

Sections 360 and 361 of the Code of Criminal Procedure have been inserted in the Code with a view to give the benefit of probation to the first offenders as well as to the persons below twenty-one years of age. Section 360 Cr. P.C. provides that when any person not under 21 years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less and 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 him/her, if it appears to the Court, before whom he is facing trial and by whom he is convicted, regard will be had to the character, age and antecedents and the other circumstances in which the offence was committed and it is expedient that the offender should be released on probation of good conduct, then the Court may, instead of sentencing him at once to any punishment direct that he may be released on probation of good conduct on his entering into the bonds. Section 361 of the Code of Criminal Procedure provides that if the Court refrains from dealing with an offender u/s 360 Cr. P.C. or under the provisions of the Probation of Offenders Act, 1958, then he shall record special reasons for not doing so. Section 361 Cr. P.C, thus, makes it, mandatory for the Court to record in its judgment the special reasons, on account of which the Court is not giving the benefit of probation to the accused. This Section, thus, casts a duty upon the Court to apply the provisions of Section 360 Cr. P.C. wherever it is possible to do so and to give special reasons if the Court does not extend the benefit of probation to the accused. The special reasons, as per Section 361, Cr. P.C. must be such as to compel the Court to hold that it is impossible to reform or rehabilitate the accused after examining the matter with due regard to the character, age and antecedents of the offender and the circumstances under which the offence was committed. The modern trend is of reclamanation rather than of condemnation. The intention to the legislature in enacting Sections 360 and 361 Cr. P.C. is that an effort may be made to reform the offender and to protect the younger generation from becoming the professional and hardened offender and a menace to the society and this benefit of probation cannot be denied to an accused merely on the ground that the complainant remained in the hospital for 24 days and the injuries received by him are three in number or the compensation awarded to him is inadequate. The human consequence of confinement will be of no good to the society but it will result in an injury to the miserable family in which the accused is only the earning member. Keeping in jail will not, in any way, reform the accused, rather it will damage the prestige of the accused and his family. It is, therefore, the mandate of the legislature to release the accused on probation if he is the first offender and is fully repentant and prays for an opportunity for the same. The accused was examined in the Court on September 12, 1984 and in his statement u/s 313 Cr. P.C., his age has been given as twenty-four years. The incident took place on June 25, 1980. Thus, on the date of the incident, the accused was less than 21 years of age. Looking to the age of the accused and the fact he was not a previous convict and his antecedents are also, not bad, and he is fully repent and wants an opportunity to reform himself, the learned lower Court, in my view, has not committed any illegality in giving the benefit of probation to the accused-respondent.

The result is that this revision-petition, filed by the petitioner-complainant, has not force and is hereby dismissed.