Singaramoorthi vs The State by Inspector of Police Thanjavur

Ratnavel Pandian, J.—Accused No. 1, viz., Singaramoorthi, in C.C. No. 42 of 1979 on the file of the learned Sub Divisional Judicial Magistrate, Mannargudi, has preferred this revision challenging the validity and correctness of the judgment made in Crl. App. No. 11 of 1980 on the file of the learned Sessions Judge, West Thanjavur Division at Thanjavur, dismissing the appeal but modifying the conviction into one under S. 408, I.P.C, instead of S. 409, I.P.C, as found by the trial Court, and also setting aside the sentence of rigorous imprisonment for six months imposed by the trial Court, and in lieu of that, directing him to be released under S. 4(1) of the Probation of Offenders Act on his entering into a bond for Rs. 500 with one surety for a like sum to receive sentence when called upon during a period of one year, and in the meantime to keep the peace and be of good behaviour.

The charge levelled against the revision petitioner (accused No. 1) reads that the accused No. 1 being the Secretary of the Co-operative Agricultural Credit Society, Serumangalam, who was arrayed as the second accused, was entrusted with the accounts of the said Society, and that he has misappropriated a sum of Rs. 1,954.61 on 29th May, 1973 by not bringing that amount into account of the day book of the Society. To substantiate the above charge, the prosecution has examined P.Ws.1 to 13 and filed Exts.P1 to P12. The trial Court, for the reasons assigned in its judgment, found both the accused guilty, and convicted and sentenced each to undergo rigorous imprisonment for a period of six months, and also directed the sentence imposed on accused No. 1 (the revision petitioner) to run concurrently with the sentence imposed in C.C. No. 41 of 1979 on its file.

On being aggrieved by the conviction and sentence imposed by the trial court, the revision petitioner (accused No. 1) filed C.A. No. 11 of 1980 on the Court of Session, West Thanjavur Division, Thanjavur. It is seen from the judgment of the lower appellate Court that though the revision petitioner challenged the validity of his conviction in the memorandum of grounds, during the hearing of the appeal, the submission was confined only with regard to the question of sentence, and the validity of his conviction was not challenged. It was under those circumstances, the lower appellate Court, for the reasons given in paragraph 7 of its judgment, has directed the revision petitioner to be released under S. 4(1) of the Probation of Offenders Act. Hence this revision.

Mr. R. Gandhi, the learned Counsel for the revision petitioner has only made a submission requesting this Court to make an observation that the order of the lower appellate Court releasing the revision petitioner under S. 4(1) of the Probation of Offenders Act, does not render any automatic disqualification attached to the conviction itself. But, he has not advanced any argument regarding the validity and legality of the judgment of the lower appellate Court.

Before adverting to the submission made by the learned Counsel, I would like to point out here that the lower appellate Court was not correct in confining itself only to the question of sentence on the submission made by the learned counsel for the accused before it without rendering a finding as to the correctness of the conviction recorded by the trial Court, it being a final Court of facts. However, I feel that it is not necessary for me at this stage to make any detailed discussion about this except expressing my resentment over the manner in which the lower appellate Court has disposed of the appeal. On a perusal of the judgment, I see no question of law involved in this revision, warranting my interference with the conviction and the order releasing the revision petitioner under S. 4(1) of the Probation of Offenders Act. Hence, the conviction under S. 408, I.P.C., and the order directing the release of the revision petitioner under S. 4(1) of the Probation of Offenders Act are confirmed.

Now, coming to the submission made by the learned counsel for the revision petitioner, I feel that it is not necessary to record any observation as requested, since S. 12 of the Probation of Offenders Act itself is very clear in its terms. S. 12 of the Act coming under the caption "Removal of disqualification attaching to conviction" enacts.�

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

This is subject to a proviso which reads�

Provided that nothing in this section shall apply to a person who after his release u/s 4, is subsequently sentenced for original offence.

In the present case the proviso will not come into operation.

The impact of this provision of the Probation of Offenders Act was considered by Rajagopala Ayyangar, J., as he then was, in R. Kumaraswami Aiyar Vs. The Commissioner, Municipal Council and Another, . In that case, the learned Judge has observed as follows:

If, for instance, the petitioner is dismissed from service because he has bees found guilty of an offence involving moral turpitude it cannot be said that he is suffering from a disqualification attaching to a conviction. What S. 12-A has in view is an automatic disqualification flowing from a conviction and not an obliteration of the misconduct of the accused. In my judgment the possibility of disciplinary proceedings being taken against a person found guilty is not a disqualification attaching to the conviction within the meaning of S. 12-A of the Probation of Offenders Act.

The same view was endorsed by a Full Bench of the Punjab and Haryana High Court in Om Prakash Vs. The Director Postal Services (Posts and Telegraphs Department), Ambala and Others, . The Full Bench observed as follows:

What S. 12 removes is a disqualification attaching to a conviction. In my opinion, neither liability to be departmentally punished for misconduct is a disqualification, nor it attaches to the conviction. ''Disqualification'' in its ordinary dictionary meaning connotes something that disqualifies or incapacitates. To disqualify a person for a particular purpose means to deprive that person of the qualities or conditions necessary to make him it for that purpose.

The other reason why S. 12 or the Act does not help the petitioner is that the departmental proceedings are not attached to the conviction of the offence. Departmental proceedings are not taken, because the man has been convicted. The proceedings are directed against the original misconduct of the servant�No part of S. 12 is intended to exonerate a Government servant of his liability to departmental punishment for misconduct. This provision does not afford immunity against disciplinary proceedings for the original misconduct. What forms basis of the punishment is the misconduct and not the conviction.

Subsequently, the Supreme Court had occasion to consider the decisions of the various Courts inclusive of the judgment of this Court referred to above in The Divisional Personnel Officer, Southern Railway and Another Vs. T.R. Chellappan and Others, . Finding itself in complete agreement with the decision rendered by this Court in R. Kumaraswami Aiyar Vs. The Commissioner, Municipal Council and Another, the Supreme Court finally held that this matter was considered by a number of High Courts, and there is a consensus of judicial opinion on this point that S. 12 of the Act is not an automatic disqualification attaching to the conviction itself. In view of the above discussion, I hold that the revision petitioner (accused No. 1) cannot be said to be suffering from a disqualification attaching to the conviction under S. 408, I.P.C.

This revision case is dismissed subject to the above observation.