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1959 DIGILAW 353 (ALL)

State v. Ram Khilari

1959-12-09

ROY, UNIYAL

body1959
JUDGMENT Roy, J. - This reference has come up before us by an order of the Additional District Magistrate of Agra passed on 30-9-58. When it was laid before a learned single Judge of this Court he directed notice to issue to Ram Khilari Respondent to show cause why an appropriate sentence should not be passed upon him Ram Khilari is personally served and is represented by Mr. Sabd Saran who holds a pauper brief because Ram Khilari in response to the notice issued to him contended that he is not possessed of sufficient means to defend himself in this Court. 2. The facts giving rise to this reference are these. On 23-9-57, at about 1 A.M., certain thieves entered into the Kotha of Basti Ram, the complainant, by breaking open the roof of his house. When Basti Ram woke up, some of the miscreants escaped. Ram Khilari, the Respondent, was caught when he was coming out of the house and was trying to escape with silver ornaments worth Rs. 49/8/- and with a dhoti and a chadar worth Rs. 8/-. The matter was reported to the police and Ram Khilari was also handed over along with the articles aforesaid. The case came up before a learned Magistrate of the first class. The Magistrate chose to proceed with the trial in the manner of trial of a summary case as provided by Section 260 Code of Criminal Procedure. Ram Khilari pleaded guilty to the charge. He wished to be excused. The learned Magistrate found the accused guilty and applied Section 3 of the up First Offenders' Probation Act, No. VI of 1938 and instead of sentencing him to any punishment released him after due admonition. 3. In making the reference the learned Additional District Magistrate of Agra has said that Section 3 of the U.P. First Offenders' Probation Act does not apply to the case and the order of the learned trying Magistrate was therefore erroneous. 3. In making the reference the learned Additional District Magistrate of Agra has said that Section 3 of the U.P. First Offenders' Probation Act does not apply to the case and the order of the learned trying Magistrate was therefore erroneous. Section 3 of the Act is in the following terms: In any case in which a person is found guilty of the offences of theft, dishonesty, misappropriation, or cheating, punishable under IPC or of any offence punishable with not more than two years' imprisonment and no previous conviction is proved against him, the court by which he is found guilty may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed instead of sentencing him to any punishment, release him after due admonition. 4. The learned trying Magistrate in releasing the Respondent after due admonition, instead of sentencing him to any punishment, observed: The accused is a young man of below 24 years. This is his first offence. I therefore deem it fit to deal with the accused under the provisions of the U.P. First Offenders' Probation Act. The accused is a very poor boy and is a resident of District Dholpur (Rajasthan) and he has not got even means to give sureties. I therefore release the accused after due admonition u/s 3 of the U.P. First Offenders' Probation Act. The accused is very much repentant. 5. The order quoted above makes it abundantly clear that the learned Magistrate did not consider the nature of the offence as trivial. In fact it was never so. When a number of persons commit lurking house-trespass by night or house-breaking by night in order to the committing of theft by breaking open the roof of the house of another and in the act of the committing of that offence one of them is apprehended with certain property belonging to the person whose house is broken open or trespassed upon by night, the offence is of a serious character. There can again be no doubt that an offence punishable u/s 457 IPC is triable summarily in view of the provisions Section 260(1)(i) Code of Criminal Procedure and if the offender is found guilty the limit of imprisonment which can be awarded to him would, in view of Section 262(2) Code of Criminal Procedure be imprisonment for a term not exceeding three months. It is however clear that it is not every offence of lurking house trespass or house-breaking by night in order to the committing of theft that should be tried summarily even if the Magistrate is invested with summary powers. A case must not be tried summarily only because it is summarily triable. The question is left to the discretion of the Magistrate to be exercised judicially with due care and with reference to the circumstances of each case. In the present case the learned trying Magistrate would perhaps have exercised better discretion--a discretion based judicially upon the balancing of the (sic) and cons with reference to the circumstances obtaining here--if instead of trying the case summarily he had tried it in the regular fashion so that the accused, when found guilty, could have been given a sentence of imprisonment commensurate with the gravity of the offence and not circumscribed by the limit of imprisonment provided by Section 262(2) Code of Criminal Procedure. Ordinarily summary trial should be restricted to simple cases. It is inappropriate in cases in which the circumstances are such that on conviction they call for more severe punishment than can be awarded in summary trial. 6. We have given the provisions of Section 3 of the U.P. First Offenders' Probation Act our careful consideration and we are of opinion that the learned Magistrate was clearly wrong in applying it to the instant case The first part of the section makes it applicable to offences of theft, dishonesty, misappropriation or cheating irrespective of the limit of punishment provided for the same under the IPC. The second part of the section makes it applicable to any other offence punishable with not more than two years imprisonment. The second part of the section makes it applicable to any other offence punishable with not more than two years imprisonment. In either case the section requires that before its provisions are applied the other conditions are fulfilled, viz., (a) that no previous conviction is proved against the offender; and (b) that having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, the Court thinks fit to give the benefit of it to the offender. It is obvious that these provisions are not to be lightly applied. The discretion is no doubt vested in the Court, but such a discretion must be exercised judicially with due care and with reference to the circumstances of each case. 7. Where an accused is convicted of an offence of committing lurking house-trespass by night, or house-breaking by night with the intention of committing theft punishable u/s 457 IPC the term of imprisonment may extend upto fourteen years as provided by Section 457. It is therefore clear that for such an offence Section 3 of the First Offenders' Probation Act cannot be made applicable. Cases of this nature have come U.P. before this Court and we have had occasion to draw the attention of the learned Magistrates to the error committed by them in the application of Section 3 of the U.P. First Offenders' Probation Act. A Bench of this Court to which one of us happened to be a member in Ramphal and Anr. v. Happu and Ors. 1955 ALJ 327 in the application of Section 3 of the U.P. First Offenders' Probation Act in relation to an accused convicted of an offence u/s 411 IPC laid down that Section 3 is not applicable where the punishment provided for is imprisonment exceeding two years. 8. Mr. Sabd Saran has submitted that since Section 3 of the U.P. First Offenders' Probation Act makes its provisions applicable to the case of an offence of theft, those provisions would also be applicable to an offence of lurking house trespass or housebreaking by night in order to the committing of theft because that offence amounts only to an aggravated form of the offence of theft. We are unable to agree to this submission Section 3 of the U.P. First Offenders' Probation Act makes an exception in the case of an offence of theft simpliciter and not in the case of lurking house trespass or house-breaking by night in order to the committing of the theft. If the Legislature had intended that Section 3 would be made applicable to Section 457 IPC as well, the Legislature should have clearly expressed it in the section. Thai not being so, we have no doubt in our mind that Section 3 of the U.P. First Offenders' Probation Act is not applicable to an offence punishable u/s 457 IPC. 9. In the circumstances we accept the reference, set aside the order u/s 3 of the U.P. First Offenders' Probation Act and sentence the Respondent u/s 457 IPC to three months' rigorous imprisonment. The Respondent should be taken into custody to serve out this sentence. A copy of our order should be sent to the District Magistrate of Agra for compliance.