Vijai S. Misra vs State of U.P. and Another

N.N. Sharma, J.—This revision is directed against order dated 27-7-1981 recorded by Sri G.D. Dubey, I Additional District Judge, Jaunpur who dismissed Criminal appeal No. 152 of 1980 and affirmed the order of Sri K.P. Verma, learned IVth Judicial Magistrate, Jaunpur dated 7-10-1960 in Criminal case No. 746 of 1979 by which the revisionist was convicted under Sections 323/504 and 506, IPC. The sentence awarded was 15 days Simple Imprisonment and a fine of Rs. 50/- under each count. However, the aforesaid sentences were postponed for one year provided the revisionist kept peace and remained of good behaviour. If the revisionist was found guilty of any other offence during this period the aforesaid sentences were to operate. The revisionist was ordered to execute a personal bond in the sum of Rs. 500/- and furnish one surety bond for a period of one year in the like amount and thus was to be released on probation forthwith.

The prosecution case briefly stated was that on 1-1-1979 at about 8 a.m. the revisionist went to the house of complainant Moosey, PW 1 and forcibly carried a kid. When complainant objected to it he was abused by the revisionist and assaulted with lathi, fists and kicks. It was on intervention of witnesses Ram Ujagir, PW 2, and Raj Bhari, PW 3 that revisionist left the kid and went away holding out threats.

The complainant lodged report Ext. Ka 1 at police station Sikrara in the same fore-noon a 11.45 a.m. He could not get himself medically examined on account of poverty and when police did not take any action in the matter he filed the complaint on 4-1-1979. The accused was summoned by the Magistrate after following usual procedure of a complaint case.

Prosecution examined the aforesaid witnesses about the occurrence and one Dashrath, PW 4, who proved the FIR.

In his statement revisionist denied the aforesaid occurrence and alleged his implication to ill will with one Mog Sharma who got him involved in this case.

In defence revisionist examined Harinath, DW 1, and Bankey Behari, DW 2, who denied the said occurrence and alleged the implication of revisionist to ill will.

Learned Magistrate recorded the impugned order which was affirmed in appeal.

I have heard Sri G.S. Chaturvedi, learned Counsel for the revisionist and Sri R.K. Srivastava learned AGA.

On behalf of the revisionist it was pointed out that the bonds have already been furnished by the revisionist. I find the sentences awarded by the learned Magistrate unsustainable. A mere look at Section 4 of Probation of Offenders Act (Act No. 20 of 1958) shall go to disclose that the order recorded by learned Magistrate and affirmed in appeal is wholly illegal and liable to be quashed. The learned Magistrate has sentenced the revisionist under three count to imprisonment as well as fine has also extended him the benefit of Probation Act.

Obviously an order u/s 4(1) of Probation of Offenders Act cannot be said to be a punishment as was held in State v. Jagdish reported in AIR 1978 Raj 110.

Release on probation is not one of the various kinds of punishments described in Section 53 of the Indian Penal Code. An accused cannot be punished and at the same time released on his entering into a bond with or without sureties to appear and receive the sentence when called upon and in the meantime to keep the peace and be of good behaviour. Thus the order of learned Magistrate was not in conformity with the said provisions.

In Karim Baksh v. Emperor reported in AIR 1930 Lah 56 the accused was sentenced to pay a fine and was also released on probation u/s 562 of Old Code of Criminal Procedure (Act No. V of 1898). Such order was struck down as illegal. Mt. Varkat v. Emperor reported in AIR 1934 Lah 514, the accused was sentenced to imprisonment as well as benefit of probation of good conduct u/s 562 of the Old Code of Criminal Procedure (Act No. V of 1898) was also extended to her. Such a release of the convict on probation of good conduct as well as imprisonment was held as beyond the competence of the learned Magistrate. In Jamsher v. Emperor reported in AIR 1934 Lah 582 the accused was ordered to be released on probation of good conduct u/s 562 of the Old Code of Criminal Procedure but imprisonment was ordered on failure to furnish other security. This order was held as illegal.

It further appears from the order recorded by learned Magistrate that if during that period revisionist was found guilty of any other offence he would expose himself to the sentences awarded by the learned Magistrate. Magistrate had no jurisdiction to pass such on order. He should have passed an order u/s 4(1) of the Probation Act. He should not have gone out of his way to pass an arbitrary order.

For the aforesaid reasons the impugned order is unsustainable and quashed herewith. Thus the revision is allowed.

Revision allowed.