Ram Chandra v. State — 1987 DIGILAW 911 (RAJ)

FAROOQ HASAN, J.—This criminal misc. application under sec. 462, Code of Criminal Procedure, 1973, (Cr. P. C) has been filed with this prayer that the order dated October 15, 87 passed by the Judicial Magistrate No. 9, Jaipur City Jaipur may be quashed. 2. Brief facts giving rise to this misc. petition are that the petitioner, Ramchandra, was convicted and sentenced to one years rigorous imprisonment and to pay a fine of Rs. 500/- by the Munsif & Judicial Magistrate No. 9 Jaipur City, Jaipur, for the offence under the Rajasthan Excise Act against which, the petitioner filed and appeal in the Court of the Additional Sessions Judge No. 2, Jaipur City, Jaipur, who vide his judgment dated March 24, 1984 allowed the appeal giving the petitioner benefit of probation and, ordered that the petitioner be released on probation on his furnishing a surety of Rs. 3,000/- with personal bond in the like amount for keeping peace and good conduct for a period of one year. The petitioner was granted fifteen days time to file the aforesaid with the direction that in the case the petitioner fails to furnish the required bonds within the granted time then he would have undergo the sentence passed by the trial court. The petitioner failed to furnish surety with bond in the Court within the stipulated time. Therefore, the learned Magistrate ordered to issue warrant of arrest agains the petitioner. The last arrest warrant was issued on September 4, 1987 by the Magistrate and in compliance to that the petitioner was arrested and produced before the lower court on October 15, 1987. The learned Magistrate then passed the impugned order and directed that the petitioner be sent to jail to undergo the sentence passed by the trial Court. 3. I have heard the learned counsel for the petitioner and the learned Public prosecutor. 4. As said earlier, while partly allowing the appeal of the petitioner against his conviction and sentence, the learned Additional Sessions Judge vide his judgement dated March 24, 1984, in the facts and circumstances of the case felt it justified to give the petitioner benefit of probation under section 4 of the Probation of Offenders Act, 1958,(for short, the Act of 1958). 5. 5. Sub-section (1) of Section 4 of the Act, 1958 which is relevant for the purpose of resolving the controversy in the instant case, reads as under: "(1) When any person is found guilty of having committed and offence not punishable with the death or imprisonment for life and the court by which the person found guilty is of opinion that, having regards to the circumstance 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 directed 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 directed, 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 any, has a fixed place of abode or regular occupation in the place over which the court exercised jurisdiction or in which the offender is likely to live during the period for which he enters into the bond." 6. On a reading of the afore-quoted provisions of the Act of 1958, it is clear that the Court, by which a 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 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 the release of the offender on his entering into a bond, with or without sureties, to appearand receive sentence when called upon to do so. It is also clear that while passing the order of probation the Magistrate is not required rather empowered to pass the order of sentence simultaneously. 7. It is also clear that while passing the order of probation the Magistrate is not required rather empowered to pass the order of sentence simultaneously. 7. While releasing the offender under Section 4 of the Act of 1958 or under Sec. 562, Old Cr.P.C. on probation of good conduct, the Court if directs at the same time that in the event of failure to furnish sureties, the offender suffer/undergo imprisonment, then a perusal of the aforesaid Sections makes it clear that the order of imprisonment on failure to furnish sureties could not be added to the order of release on probation of good conduct. There is no warrant of proposition that if an offender failed to furnish the sureties under the aforesaid Sections he should be detained in imprisonment till the expiration of the period for which, he is sentenced by the trial Court. In the event of failure to furnish the sureties or its breach the Court may pass the sentence. 8. In the instant case, when the learned Appellate Court granted the benefit of the provisions contained in the Act of 1958 then it can be said that the order of the appellate court tantamounted to setting aside of the sentence passed by the trial court. The Code of Criminal Procedure as well as the Act of 1958 are silent about the consequences on accused/offenders failure to furnish the sureties But, it stands to reason that appropriate view is to be borne in mind that the accused was convicted but not sentenced to imprisonment. If he is produced before the Court for the purposes of suitable punishment being imposed, in that situation, in view of the aforesaid proposition, I am of the opinion that this part of the judgment of the appellate Court that in case the petitioner fails to furnish the required bonds within a period of fifteen days he would undergo the sentence passed by the trial Court, was wrong because, such an order of sentence was possible only after it was found that the accused/ offender failed to comply with the order of the Court, i. e. failed to furnish bonds as directed or that the conditions of bonds if filed were not complied with. In the instant case, there is no dispute that the accused-petitioner failed to furnish the required bonds and the Magistrate was justified in issuing the warrant of arrest but he was not justified in sending the accused-petitioner to jail to undergo the sentence because the sentence was to be passed by the appellate court which granted the petitioner the benefit of probation of good conduct under the Act of 1958. 9. In the facts and circumstances of the present case, and in view of the aforesaid observations, in the instant case, the petitioner was then not entitled to get benefit of probation of good conduct under the Probation of Offenders Act or Section 562, Cr. P. C. and the sentence was to be passed by the learned appellate court which decided the appeal of the petitioner on March 24, 1984. But the learned Magistrate failed to follow the aforesaid procedure and directly sent the petitioner to jail to undergo the sentence without making any reference to the appellate Court which decided the appeal of the petitioner. As said earlier in the instant case the sentence is to be passed against the petitioner and it was to be passed by the learned Additional Sessions Judge No.2, Jaipur City, Jaipur who decided the appeal of the petitioner on March 24, 1984. 10. In these circumstances, the only appropriate order which can be passed in the present case is either to refer the matter back to the Additional District & Sessions Judge No. 2, Jaipur City Jaipur to pass proper sentence against the petitioner or the same can be passed by this Court while exercising its powers under Section 482, Cr. P. C. 11. The petitioner had been arrested on October 15, 1987 and since then he is in judicial custody and he had been found guilty for the offence under the Excise Act and the learned trial Court had decided the case in the year 1983 and the appeal against his conviction and sentence had been decided on March 24, 1984. 12. Learned counsel for the petitioner then contended that the petitioner had been found guilty by the learned appellate court under its judgment dated March 24,1984 and there are no allegations against the petitioner of any kind of having committed any breach of peace or mis-conduct. 12. Learned counsel for the petitioner then contended that the petitioner had been found guilty by the learned appellate court under its judgment dated March 24,1984 and there are no allegations against the petitioner of any kind of having committed any breach of peace or mis-conduct. Learned counsel also contended that the petitioner is an illiterate and rustic villager and is resident of a rural area; moreover because of the ignorance, he (petitioner) failed to comply with the condition and order of probation. Therefore the learned counsel submitted that in the facts and circumstance and looking to the nature of the offence, it would be in the interest of justice that a lenient view may be taken in this case; and that, the petitioner is under arrest since October 15, 1987 and has been undergoing the sentence and that the petitioner is 60 years of age and further that he remained on bail throughout the period of trial and during the pendency of the appeal decided on March 24, 1984. In view of the submissions made by the learned counsel for the petitioner, I am of the opinion that if the matter is again referred to the lower appellate court in order to pass the appro-priate sentence in the matter, then the matter will be further delayed. Hence I feel it justified that the appropriate order may be passed by this Court exercising powers under Section 482, Cr. P. C. 13. As said earlier, the learned Magistrate committed error in passing the order dated October 15,1987 and the order impugned in this case is liable to be quashed. Similarly, this part of the order of the learned lower appellate court that in case the petitioner fails to furnish the required bonds he would undergo the sentence passed by the learned trial court, is also illegal. 14. In view of the aforesaid discussions, I am of the opinion that in this case, the sentence already undergone by the petitioner in this case would meet the ends of justice. 15. In the result, this criminal misc. application is partly allowed; the order dated 15.10.1987 passed by the Judicial Magistrate No. 9 Jaipur City is set aside; and further that part of the order of lower appellate court dated 24.3. 15. In the result, this criminal misc. application is partly allowed; the order dated 15.10.1987 passed by the Judicial Magistrate No. 9 Jaipur City is set aside; and further that part of the order of lower appellate court dated 24.3. 1984 passed in the appeal of the petitioner against his conviction and sentence, whereby it ordered that in case the petitioner fails to furnish the required bonds he would undergo the sentence passed by the trial court, is set aside and it is ordered that the petitioner is sentenced to the period of imprisonment which he has already undergone in this case, for the offence for which he had been found guilty by the learned lower appellate court, in its order dated March 24, 1984. The petitioner is in jail, he is ordered to be released forthwith, if not required in any other case.