Ram Dai vs Subha Chand

S. D. Bajaj, J.

On big conviction under sections 451/354 of the Indian Penal Code, accused Subba Chand was sentenced by the learned trial court to rigorous imprisonment for a period of one year and ordered to pay Rs. 1000/ as fine. In default of payment of fine convicted accused was ordered to undergo simple imprisonment for a further period of three months.

In criminal Appeal No. 33 of 1988 decided on 1st September, 1989 learned Sessions Judge, Bhiwani, maintained the conviction but instead of the sentence awarded to him by the learned trial court, released accused Subba Chand on good conduct probation for a period of two years on his executing a bond with one surety in the sum of Rs. 3000/ and a personal bond for the like amount. Besides it a sum of Rs. 1000/ was also imposed upon the accused as costs of the proceedings.

Woman victim is Ram Devi has come up in Criminal Revision No. 1024 of 1989 to this court for setting aside the appellate court judgment of probation and enhancement of sentence awarded to the accused by a suitable term of rigorous imprisonment.

I have heard Shri Chander Singh, Advocate for the petitioner, Shri S.S. Rathore, Advocate, with Mr. Raj Mohan Singh, Advocate, for the respondent and have carefully gone, through the relevant material on record.

Section 360 of the Criminal Procedure Code reads :

"360. JUDGMENT to, release on probation of good conduct or after admonition :

(1) "When any person not under twentyone years of age is convinced 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 big 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 subsection (2)

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub section (1), such Magistrate may there upon pass such sentence or make such order as he might have passed or made if the case had originally been beard 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 Courts 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 subsection 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 offender under subsection (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 1959), or the Children Act, 1960 (66 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders."

Learned Court of first appeal in para : I of its impugned judgement observed :

"The learned counsel for the appellant also assailed the order of sentence and submitted that the appellant deserves leniency in the matter of sentence in the background that he is exmilitary personnel and has good antecedents besides being the first offender. He submitted that the learned Magistrate has not assigned any cogent reasons to deny him the benefit of probation. I feel that there is scope for leniency in the matter of sentence. The offence was committed on the night intervening 26th/27th Jan., 1985 i.e. more than 41/2 years back. The appellant has already undergone mild punishment by facing the ordeal of trial which lasted about 31/2 years. The appellant is first offender. There is no material on the record to show that he is incapable of being reformed. Normally, a person convicted for committing an offence punishable with imprisonment upto seven years is to be given the benefit of probation in view of the mandatory provisions of section 360, Cr.P.C. The appellant stands convicted for offences punishable under sections 451 and 354, IPC, in which the maximum permissible sentence is two years R.I., Hence, there is no reason to deny the benefit of probation to the appellant in this case. I feel that interests of justice will be fully served if the appellant is released on probation and is also burdened with costs of proceedings."

Essential ingredients for the grant of relief of probation having being shown to exist, learned court of first appeal could reasonably exercise the judicial discretion envisaged in section 360 of the Criminal Procedure Code in favour of convict accused; who is also exmilitary employee. I see no ground to interfere or tinker with it in this revision petition.

Dismissed.