Sadhu Singh vs State of Punjab

V.S. Aggarwal, J.

"The vilest deeds like poison weeds

Bloom well in prison air,

It is only what is good in men

That wastes and wither there."

(Oscar Wilde in the "Ballad of Reading goal").

1.Musical words, but convey the condition which are no different from those in our country. The said facts cannot be lost sight of, which are relevant for disposal of the present petition.

On 25.4.1993 at about 11.00 or 11.30 a.m. Gurdas Singh alias Bittu son of Sadhu Singh was going near the Gurdwara through a street. Gurmit Singh accused also came there. Gurmit Singh asked Gurdas Singh that he had caught hold of his pigeon and should release the same. Gurdas Singh replied that he was not holding any pigeon. Gurmit Singh accused was holding a screw driver. He gave the blow on the person of Gurdas Singh with the screw driver on the neck. Hazura Singh brother of Sadhu Singh had also come there. They rescued Gurdas Singh. Gurmit Singh accused ran away with the screw driver. Hazura Singh and Gurcharan Singh removed Gurdas Singh to Civil Hospital, Kharar. Gurdas Singh expired on 18.5.1993. The learned Sessions Judge, Ropar on 23.5.1994 held accused Gurmit Singh guilty of the offence punishable under Section 304 (II) of the Indian Penal Code. Vide separate order of sentence passed on the same day, the learned trial Court released accused Gurmit Singh on probation under section 4(1) of the Probation of Offenders Act, 1958 on his furnishing a bond to a sum of Rs. 5900/ for a period of three years with one surety of like amount and an undertaking to appear and receive sentence as and when called upon during the said period. In the meantime, he was directed to keep peace and be of good behavior. The accused was further directed to pay compensation of Rs. 5,000/ to the heirs of the deceased. The amount was to be paid to the heirs after result of the appeal/revision.

Father of the deceased has preferred the present revision petition praying that the accused should be sentenced to imprisonment in terms of section 304 Indian Penal Code.

Arguments were heard on merits. While the learned counsel for the petitioner high lighted the facts that the trial Court was not justified in awarding benefit of probation under the Probation of Offenders Act and should have convicted the accused. To appreciate the said argument, the relevant extract of the reasoning recorded by the learned trial court can well referred to and the same are as under:

"The convict is in raw youth and he may turn into a hardened criminal by coming into contact with other criminals in the jail. The occurrence had taken place at the spur of moment. There has no previous enmity between the accused and the deceased. The father of the deceased had even entered into compromise with the father of the accused. Taking all the circumstances in view, I find it a fit case where benefit of probation may be given to the accused. The authority cited by the learned counsel is fully applicable to the facts of the case. That was a case where the accused on conviction under Section 304 (PartII) IPC was sentenced to undergo R.I. 10 years. In appeal before the High Court, the sentence of imprisonment was set aside and he was ordered to be released on probation under Section 4 of the Act."

On appraisal of the facts, it is clear that the said reasoning is in consonance with the provisions of law. Besides Sections 4 and 6 of the Probation of Offenders, Act, 1958, Section 360 of the Code of Criminal Procedure, 1973 gave a new twist pertaining to release of persons on probation of good conduct. Subsection (1) of Section 360 Cr.P.C. reads:

360(1). When any person not under twentyone years of age is convicted of an offence punished with fine only or with imprisonment for a term of seven years or less, or when any person under twentyone 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 securities, 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 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 subsection (2)."

In fact the Legislature by virtue of Section 361 of the Code of Criminal Procedure even provided that if benefit of Section 360 Cr.P.C. is not being granted, the Court must record special reasons for not doing so. The intent is clear that balance should lean more towards grant of probation . Indeed no hard and fast rule is there because every case has to be decided on its own facts. The impetus that gave rise to the introduction of Section 360 and 361 Code of Criminal Procedure, 1973 can apparently be traced to certain observations of the Supreme Court. In the case of Hira Lal v. State, 1977 Cr. L.J. 1922 the Supreme Court had the occasion to observe:

"............ our judicial process and sentencing paradigms must lead kindly light along the correctional way. That is why Gandhi Ji emphasised the hospital setting, the patients provide in dealing with criminals; Inpatient, outpatient''s domicileary treatment with creative orientation is the penological sentence to the father of the nation."

The Supreme Court in the case of Pyarali K. v. Mahadeo Ramchandra Danga and others, AIR 1974 Supreme Court 228, once again considered the question of awarding the punishment and in paragraph 19 observed:

"Finally comes the postconviction stage where the current criminal system is weakest. The Court''s approach has at once to be socially informed and personalised. Unfortunately, the meaningful collection and presentation of penological facts bearing on the background of the individual, the dimension of damage, the social mileu and what notthese are not provided for in the Code and we have to make intelligent hunches on the basis of materials adduced to prove guilt. In this unsatisfactory situation which needs legislature remedying we go by certain broad (sic). But before that the submission of counsel for the humanistic probation law to be liberally extended to this antisocial offences his to be considered."

Similar view prevailed in the subsequent decision in the case of Mohammad Giasuddin v. State of Andhra Pradesh, 1977 Crl. L.J. 1557 and in paragraph 20 it was held as under:

"The sentencing stance of the court has been outlined by us and the next question is what ''hospitalization'' techniques will best here the sentencee, having due regard to his just deserts, blending a feeling for a man, behind the crime, defence of society by a deterrent component and a scientific therapeutic attitude at once correctional and realistic. The available resources for achieving these ends within the prison campus also has to be considered in this context."

It is obvious from aforesaid that where the offender is under the age of 21 years on the date of commission of offence, the Court is expected ordinarily to give benefit of the provisions referred to above. There is an embargo on the power of the Court to a ward the sentence unless the Court considers otherwise. The facts of the present case can again be reconsidered. Gurmit Singh had been held guilty of the offence punishable under Section 304(II) of the Indian Penal Code. There is nothing to indicate about an antecedent of the accused which may permit the Court to see him behind the bars. At the time of incident, he was about 17 years of age. It would be certainly against the interest of justice to permit such a young person in the company of other hard criminals. By doing so, the chances of Gurmit Singh turning into a good citizen would be reduced.

There is another way of looking at the matter. This discretion had been exercised by the learned trial Court. It is a judicial discretion. It cannot be said that it has been exercised arbitrarily or without valid grounds. In that event, the High Court would be slow to interfere. In the present case, there are no cogent reasons to do so. All that is good in accused Gurmit Singh, should not be allowed to waste and wither.

For these reasons, the petition being without merit fails and is dismissed.