Sunil Bhatt And Others vs State Of Uttarakhand

R.C. Khulbe, J

This criminal revision, preferred by the revisionists u/s 397/ 401 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is

directed against the judgment and order dated 21.03.2009 passed by learned Chief Judicial Magistrate, Uttarkashi in Criminal Case No.1811 of 2006,

State Vs. Sunil Bhatt & Others, whereby the learned Chief Judicial Magistrate convicted the revisionists under Section 411 IPC and awarded one

years rigorous imprisonment along with a fine of Rs.1,000/- to each one of them as well as the order dated 18.09.2009 passed by learned Sessions

Judge Uttarkashi in Criminal Appeal No.17 of 2009 “Naveen Chandra & Others Vs. State, whereby the learned Sessions Judge dismissed the

appeal affirming the order dated 21.03.2009 passed by the learned Chief Judicial Magistrate.

Facts, to the limited extent necessary, are that Executive Engineer, N.P.C.C. Dharasu, Mr. Kedar Singh submitted an application at P.S. Dharasu

on 02.10.2006 alleging that on 02.10.2006 at about 7:00 p.m. driver Sunil, who was driving the vehicle UA 07A-1846 in which the other accused-Prem

Mohan Shaklani and Navin Chandra, were also present. The above accused persons were carrying the steel rods belonging to N.P.C.C. On the basis

of the said information an FIR Ex. Ka-8 was lodged at P.S. Dharasu. After the investigation, I.O. submitted charge sheet Ex Ka-6 before the trial

Court.

On the basis of charge sheet, cognizance was taken by the learned Trial Court and charges were framed under Sections 379 and 411 IPC on

08.12.2006.

To prove its case, the prosecution has examined as many as 8 witnesses, namely, PW1 Mohd. Shafeeq, PW2 Kedar Singh, PW3 Mal Chand, PW4

Prem Singh, PW5-Ramesh Singh Aswal, PW6 S.I. Dayanand Pokhriyal, PW7 Vinod Prasad Dobhal and and PW-8 Constable Manoj Kumar.

After completion of prosecution witnesses, statements of the accused were recorded u/s 313 of Cr.P.C. who denied the allegations made against

them.

After appreciating the evidence on record and hearing learned counsel for the parties, the Trial Court, vide the judgment, under challenge, has

acquitted the accused under Section 379 IPC and convicted and sentenced the accused under Section 411 IPC. Feeling aggrieved, the accused filed a

criminal appeal No.17 of 2009, “Navin Chandra and Others Vs. State of Uttarakhandâ€​ before the Sessions Judge, Uttarkashi.

Learned Sessions Judge after hearing both the parties dismissed the criminal appeal and affirmed the order passed by the leaned Chief Judicial

Magistrate, Uttarkashi. Aggrieved by it, the present criminal revision has been filed.

Heard learned Counsel for the parties and perused the entire evidence available on the record.

Learned Counsel appearing on behalf of the revisionists fairly argued that the conviction of the revisionists, as recorded by the Court below under

Section 411 of IPC are perfectly justified as per the evidence recorded before the trial court and they also do not want to lay any challenge on the

same; they only confined their prayer to the extent that the revisionists may be extended the benefit of being the first-offender, the revisionists are only

the bread earners of their families and they may be released on probation by giving them the benefit of the Probation of Offenders Act, 1958. It is also

argued by learned counsel for the revisionists that there is no criminal history against them.

Mr. A.K. Sah, learned A.G.A appearing for the State, admits that he has not received any report about the criminal antecedents of the revisionists,

and admitted that the revisionists are the first-time offender.

In this regard, the Hon’ble Apex Court in the case of “Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjolâa€ reported in 2001

SCC (Cri.) 2, 897, in paragraph no.7, has held as under:

“7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a

useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on

probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the

description mentioned in Sections 3 and 4 of the said Act.â€​

Section 4 of the Probation of Offenders Act, 1958 read as under:

“4. Power of court to release certain offenders on probation of good conduct

When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by

which the person is found guilty is of 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 to release him on probation of good conduct, then, notwithstanding anything contained in any

other law for the time being in force, 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 the court shall not direct

such release of an offender unless it is satisfied that the offender or his surety, if 5 any, has a fixed place of abode or regular occupation in

the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the

bond.

Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer

concerned in relation to the case.

When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is

expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer

named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order,

impose such conditions as it deems necessary for the due supervision of the offender.

The Court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with

or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention

from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a

repetition of the same offence or a commission of other offences by the offender. 5. The court making a supervision order under sub-section

(3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each

of the offenders, the sureties, if any, and the probation officer concerned.â€​

Section 4 of the Act would demonstrate that if a person is found guilty of having committed an offence not punishable with death or imprisonment

for life, in that event, considering the nature of the offence and the character of the offender, the Court, instead of sentencing him at once to any

punishment, may release such person on probation of good conduct, on his entering into a bond, with or without sureties, for a period not exceeding

three years. Before releasing the offender, on probation, the Court must satisfy itself that offender or his surety, if any, has a fixed place of abode or

regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he

enters into the bond. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court while

releasing on probation may also direct that accused shall remain under the supervision of Probation Officer for a period not less than one year.

A careful reading of Section 4 of the Act would reveal that if the offence is punishable for a period more than 2 years, but not punishable with

death or imprisonment for life, admonition of sentence shall not be required and if person, released on probation, is found involved in any offence

during the period of probation or otherwise, is found behaving in violation of condition of bond, he shall be directed to serve out the sentence awarded

by the court. In other words, while on probation, such person should not involve himself in subsequent offence or must honour the condition of his bond

/ surety bond and if he breaches the same, he has to serve out the sentence awarded by the Court.

In the present case the revisionists are the first-time offender. The incident seems to have taken place 14 years ago.

Therefore, considering the provisions of the Probation of Offenders Act, 1958, no useful purpose would be served to send the revisionists to jail to

serve out the remaining sentence. Rather, in the opinion of the Court, they should be released on probation in order to reform themselves.

The present revision, thus, stands partly allowed. The conviction part of the revisionists â€" Sunil Bhatt, Naveen Chandra and Prem Mohan Saklani

under Section 411 IPC are left intact. However, as far the sentence part is concerned, it is directed that the revisionists Sunil Bhatt, Naveen Chandra

and Prem Mohan Saklani shall be released on probation for a period of one years on furnishing a personal bond to the satisfaction of the concerned

Trial Court with one surety each. The fine Rs. 1,000/- will be deposited within a period of one month from the date of receipt of this order, to the court

concerned. The concerned Magistrate shall be at liberty to impose such conditions while executing the bond which he feels fit in accordance with the

law. It goes without saying that if accused/ revisionists fail to observe good conduct and behaviour during probation or are found violating any

condition, to be imposed; the Court concerned shall be at liberty to cancel the bonds calling the accused-revisionists to serve out the remaining

sentence. The revisionists Sunil Bhatt, Naveen Chandra and Prem Mohan Saklani shall appear before the Trial Court on or before 14.08.2020 for

compliance.

Let a copy of this judgment be sent forthwith to the learned Trial Court for information/ compliance.