Pappu @ Ram Varan vs State

Ajay Rastogi, J.—Instant petition has been filed by accused against judgment dt. 20/07/05 whereby Sessions Judge, Dholpur dismissed Cr. App. No. 34/05 as time barred as a consequence whereof, judgment dt. 21/05/05 in Cr. Case No. 1/02 passed by ACJM Bari (Dholpur) convicting petitioner under Sections 325 & 323, IPC, but releasing him on probation u/s 4 of Probation of Offenders Act stood upheld.

On a report made by complainant (Shiv Singh) on 11/12/01 FIR-236/01 was registered at Police Station Sarmathura for offences under Sections 323, 341, 325, 336, IPC against petitioner and coaccused (Badri). After challan was filed, and in course of trial, prosecution witnesses were examined and after the accused were examined u/s 313, CrPC, taking note of material on record, learned trial Court convicted petitioner u/s 323 & 325, IPC and instead of awarding sentence, since he was a student at the time of alleged incident, released him on probation u/s 4 of Probation of Offenders Act on his furnishing bail bonds of Rs. 5,000/- with the stipulation that he would maintain peace and be of good behaviour for two years. However, against conviction, petitioner preferred appeal after having been filed with the delay of thirty days, learned appellate court dismissed the appeal as time barred without considering on merits.

Counsel submits that the appellate court was not justified in dismissing the appeal merely on the ground of it being 30 days time barred without considering the justification referred to in the application filed u/s 5 of Limitation Act while in such like matters, the delay ought to have been liberally considered and that apart, once the learned trial Court found the petitioner being student at the time of alleged incident andgranted benefit of probation u/s 4, it ought to have considered amended Section 12 of the Probation of Offenders Act which resulted in miscarriage of justice. Counsel placed reliance upon decision of this Court in Madanlal Mali v. State 2008 WLC 123.

Appeal is a statutory right to the accused which ordinarily is not to be curtailed and against judgment dt.21/05/05, from the record, it appears that appeal was preferred with a delay of only 30 days and reasonable justification has been disclosed, in the facts of the case, appeal was not required to be dismissed on the ground of limitation and the court of appeal committed serious error in rejecting the appeal holding it being time barred. This Court has option to remand the matter back for re-consideration of appeal on merits but in the facts of the case, when grievance raised is only in regard to consideration of amended provisions u/s 12 of the Act, no purpose is likely to serve for remanding the matter for appreciation of material in appeal on merits.

Section 12 reads ad infra:

Removal of disqualification attaching to conviction.-

Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer disqualification, if any attaching to a conviction of an offence under such law:

Provided that nothing in this section shall apply to a person who, after his release under section, is subsequently sentenced for the original offence.

As per afore-quoted provisions, the person who has been found guilty of an offence and has been dealt with u/s 3 or 4 of the Act of 1958 shall not suffer disqualification, if any, attaching to a conviction of an offence under law.

At the time of commission of alleged offences way back in December, 2001, petitioner was a student and after going cumbersome procedure, he has been selected for the post of police constable and due to impugned conviction dt.21/05/05, he has an apprehension of causing any damage depriving him of his right of livelihood.

Vide order of probation impugned dt. 21/05/05, certainly petitioner though has been released on probation granting benefit u/s 4 of the Act but provisions of Section 12 of the Act have not been looked into and in either case, in view of Section 12 of the Act, if the accused has been given benefit u/s 3 or 4 of the Act, conviction impugned will not come in his way, if he is otherwise having unblemished record of character.

Taking note of decision (supra), this Court is of the opinion that the petitioner is entitled for benefit of Section 12 of the Act.

In view of what has observed (supra), revision petition partly succeeds and is hereby allowed alongwith stay petition and it is directed that by virtue of conviction impugned, petitioner (Pappu @ Ramvaran) will not suffer disqualification, if any as per provisions of Section 12 of the Act, of 1958, and to that extent, judgments impugned of courts below shall stand modified. Records be returned to the courts concerned alongwith copy of this order.