State of Haryana vs Raj Pal

K.S. Kumaran, J. (Oral)

Heard counsel.

The respondentRaj Pal faced a charge under Section 377 of the Indian Penal Code in Criminal case No. 97/2 of 23.4.1986 before Judicial Magistrate Ist Class, Rohtak. After trial he was accordingly convicted and sentenced to undergo Rigorous Imprisonment for one year, to pay a fine of Rs. 1,000/ and in default to further undergo Rigorous Imprisonment for six months. The respondentaccused preferred appeal No. 39 of 1987 before the Additional Sessions Judge, Rohtak, and the learned Additional Sessions Judge, after hearing the parties sustained the conviction under Section 377 of the Indian Penal Code, but ordered that the respondentaccused be released on probation on his furnishing Probation bonds in the sum of Rs. 2000/ with one surety for the like amount to keep peace and be of good behaviour during the said period of one year and to appear and receive the sentence if and when called upon to do so. He also directed that the fine amount of Rs. 1000/ be paid as compensation to Chandbir PW. It is against this order of the learned Additional Sessions Judge, ordering the accused Rajpal to be released on probation that the State of Haryana has come forward with this appeal. The complainant has also filed Cr. Revision No. 336 of 1988, which was ordered to be put up along with the criminal appeal. By this judgment, the appeal and the revision are being disposed of.

I have heard the learned counsel for the both sides.

The first contention of the learned counsel for the appellant is that Section 377 of the Indian Penal Code provides for the imposition of a sentence even of life imprisonment on the person convicted under that Section and the Learned Additional Sessions Judge was not, therefore, right in ordering reliease of Rajpalrespondent on Probation. According to him under Section 4 of the Probation of Offenders Act, 1958 a person can be ordered to be released on Probation except in a case where he has been found guilty of having committed an offence punishable with death or imprisonment for life. He, therefore, contends in the present case where the respondents accused has been found guilty under Section 377 of the Indian Penal Code, under which he could have been punished with the imprisonment for life, he could not have been ordered to be released on Probation. He also relies upon the decision of the Hon''ble Supreme Court of India is Som Nath Puri v. State of Rajasthan, AIR 1972 Supreme Court 1490, in support of his contention. In that case it was held that where the accused was convicted for an offence under Section 409 of the Indian Penal Code punishable with imprisonment for life, the Court cannot invoke the provisions of Section 4 of Probation of Offenders Act. This decision supports the contention of the appellant. The decisions relied upon by the learned Additional Sessions Judge have no application to the facts of this case.

Another point urged by the learned counsel for the appellant is that before granting this relief to the accused, the Court was bound to call for a report from the Probation Officer, in view of the provisions of Section 4(2), but no such report appears to have been called for in this case. But it is not necessary for me go into this question in view of the specific provisions contained in Section 4(1) that the provisions of this Section cannot be applied to a case where the accused is found guilty of an offence punishable with imprisonment for life. Therefore, on this ground alone the order of the learned Additional Sessions Judge Rohtak, ordering that the accused be released on Probation has to be set aside.

The learned counsel for the respondentaccused, of course, contended that the appellate Court has taken into consideration the fact that the accused was less than 21 years of age, and had chosen to release him on Probation, and this Court should not impose a separate severe sentence than the one that has been imposed by the Additional Sessions Judge. But the learned Additional Sessions Judge has not imposed any sentence of imprisonment upon the accused at all but has only ordered him to be released on probation. Therefore, this contention of the learned counsel for the respondent/accused cannot be accepted.

The learned counsel for the respondent/accused contended that the respondent/accused has already undergone a period of six months as well as the agony of this litigation for the last more than ten years and, therefore, this Court should take lenient view and hold that the sentence already undergone by him and the fine paid by him are sufficient, and order him to be released. I do not agree with the learned counsel for the respondent/accused. Inasmuch as the offence committed by the respondent/accused is heinous crime committed on a small boy of seven years old, it deserves to be dealt with severe punishment. Further, he has already been given a lenient term and only the sentence on one year with fine has been imposed upon him, and there are no grounds for reducing the same of for showing any more leniency as prayed by the respondent/accused.

In these circumstance, I find that the order of the learned Additional Sessions Judge modifying/setting aside the order of the trial Court imposing the sentence of one year and, ordering the respondent/accused to be released on Probation cannot be sustained and has to be set aside. The same is accordingly set aside. The order of the trial magistrate is restored and the respondentaccused will be secured and he will be sent to the prison for undergoing the remaining period of sentence of imprisonment. The appeal and the revision petition are disposed of accordingly.