Subash Chand vs State of Himachal Pradesh

M. Srinivasan, C.J.—There is no merit whatever in the Criminal Revision.

Point. No. 1. It is quite evident from reading the judgment that it is only a slip of tongue or hand by which the finding on point No. 1 is shown in negative. In the judgment, when he has framed the point whether the impugned judgment is legal and factually sustainable and it is found after discussing the entire evidence that the judgment is unassailable, the extract of the findings given in paragraph 11 as against point No. 1 in the negative is certainly a mistake and it cannot be taken advantage of by the petitioner herein. It is really surprising that such an argument is advanced at the stage of revision petition before this Court.

........ It is contended that Section 54 of the Indian Evidence Act excludes any evidence of bad character unless it is one of the issues in the case. It is argued that for the purpose of refusing probation, the court cannot rely upon the alleged bad character of the accused. I am unable to accept this contention. The very purpose of the Probation of Offenders Act is to see whether after the Court found a person to be guilty on the basis of evidence on record, he, should be let off on probation so that he would become a normal man by rectifying himself. Section 3 of the probation of Offenders Act provides that when a person is found guilty of having committed an offence punishable under the sections mentioned herein and no previous conviction is proved against him and the Court, by which the person is found guilty is of the opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct u/s 4, release him after due admonition. Thus Section 3 carves out an exception to the provisions of Indian Evidence Act and it expressly excludes all other laws as there is non-obstinate clause in Section 3. That section specifically requires the Court to take into account the various circumstances of the case including the nature of the offence and character of the offender and if it is found expedient, to release the accused on probation. It is entirely the discretion vested with the concerned Magistrate and the Magistrate has to exercise such discretion taking into account the various factors mentioned in Section 3 of the Probation of Offenders Act ...

...... The proviso to Section 7 empowers the Court if it so thinks fit to communicate the substance thereof to the offender and may give him an opportunity of producing such evidence as may be relevant to the matter stated in the report. Learned Counsel for the petitioner contends that the Magistrate failed to communicate the substance of the report to the Petitioner herein. It is not a mandatory provision. It leaves to the opinion of the Court and only if the Court thinks it fit; it has to communicate the substance of the report to the accused. In this case, the Magistrate found it unnecessary in view of he fact that there is already another case pending before him against the same accused.

11 Bir Singh and Others Vs. State of Uttar Pradesh, ; and

The State of Assam Vs. Bhelu Sheikh and Others, ;- Referred to.

...... In the result, the contentions urged by learned Counsel for the Petitioner have no merit and hence rejected. The Criminal Revision Petition is dismissed.