Chittaranjan Khatua v. State — 1989 DIGILAW 431 (CAL)

JUDGMENT Sengupta, J. : This revisional application is directed against the order passed by the learned Additional Sessions Judge, 1st Court, Midnapore, under section 9(3) of the Probation of Offenders Act, 1958, on 8th June, 1988, forfeiting the Bond executed by the petitioner under section 4(3) of the said Act and further sentencing him to rigorous imprisonment for five years. 2. The facts leading to this revisional application are shortly stated hereinafter as under :– The petitioner was put on trial before the learned Additional Sessions Judge, 1st Court at Midnapore in connection with the Sessions Trial Case No. XXI of November 1986 on a charge being framed for committing an offence of culpable homicide not amounting to murder, punishable under section 304, Part II of the Indian Penal Code. The said case related to homicidal death of one Khageshwar Das of Amdabad, P. S. Nandigram. On 10th January, 1987, the charge was framed against the petitioner under section 304, Part-II of the Indian Penal Code. The petitioner, in his petition dated 10th January, 1987, pleaded guilty to the said charge. He had further stated that he was a Post Master posted at Kamalpur Branch Post Office. He had three sons and two daughters. One of the daughters was married. He was the only earning member of the family. His wife died in the year 1985. The incident took place on 17th and 18th February, 1985 and he became "very much shocked and very much repentant for his act". In the circumstances it was stated that he may be released on "Probation for good conduct." 3. The learned Additional Sessions Judge, however, suspended imposition of the sentence and dealt with the petitioner under section 4 of the Probation of Offenders Act, 1958. 4. The learned Additional Sessions Judge in his order dated 10th January, 1987, inter alia, held as follows :– "A charge u/s. 304 Part II I.P.C. is framed against the accused Chittaranjan Khatua and it is read over and explained to him and the accused pleads by saving and prays for mercy of the Court. It is submitted that accused Chittaranjan Khatua is a Post-master and is a permanent employee or the Central Govt. and he is a family man and is quite repentant and that he could not foresee such an eventuality of his acts. It is submitted that accused Chittaranjan Khatua is a Post-master and is a permanent employee or the Central Govt. and he is a family man and is quite repentant and that he could not foresee such an eventuality of his acts. In such circumstances, the guilty plea of the accused Chittaranjan Khatua is accepted as voluntary and his submissions as contained in the petition praying for the opportunities of Probation of Offenders Act is also considered and accepted. It is held that to meet the ends of justice, it will be expedient to grant the accused the chance of correction u/s. 4 of the Probation of offenders Act to enable him to correct himself and to be a good citizen in the larger interest of the society. It is further held that the remaining 14 accused should be discharged u/s. 227 Cr. P. C. as there is no evidence to proceed against them. Hence it is Ordered that the accused Chittaranjan Khatua is found guilty u/s. 304 Part II of the I.P.C. is convicted under section 229 Cr. P. C. and his sentence is suspended for the present. Call for a report from the Probation Officer about the feasibility and admissibility of the accused Chittaranjan Khatua for release u/s. 4 of the Probation of Offenders Act fixing 10.2.87 for further orders. If the accused is found fit to be released on probation, he will be required to execute a bond of Rs. 2000/- for two years with a surety for the like amount and the surety must have financial means to stand such surety and also should have actual control over the accused. If the accused Chittaranjan Khatua is found unfit to be so released, then he will be called upon to receive sentence as would appear fit, proper and adequate. The accused is to remain on same bail bond and bond till next date." 5. On the 4th February, 1987, the probation Officer submitted his report before the learned Additional Sessions Judge. From the said report it appears that the petitioner was 56 years old in 1987. In the said report he has, inter alia, stated that the offender was repentant for the crime he had committed and was afraid of imprisonment and that he had assured to lead an honest life in future. From the said report it appears that the petitioner was 56 years old in 1987. In the said report he has, inter alia, stated that the offender was repentant for the crime he had committed and was afraid of imprisonment and that he had assured to lead an honest life in future. On a consideration of the facts and circumstances, the Probation Officer recommended that the offender might be dealt with under section 4 of the Probation of Offenders Act, 1958 and be released on probation with a surety for good behaviour. 6. On 11th March, 1987 the petitioner executed a Bond under section 4(1) of the Act. He bound himself during a period of two yean by the following conditions :– (i) To appear and receive the sentence when called upon to do so. (ii) To keep the peace and not to commit any act that may occasion a breach of peace. (iii) To be of good behaviour. 7. A surety was furnished for Rs. 2,000/- by his elder brother, Anil Kumar Khatua. 8. On the same day, another Bond was executed by the petitioner under section 4(4) of the said Act. He bound himself by the following conditions for two years :– (i) That he shall remain under the supervision of the Probation Officer as mentioned in the Supervision Order. (ii) That he shall observe the conditions specified in the Supervision Order. 9. A surety of Rs. 2,000/- was furnished by Anil Kumar Khatua, the elder brother of the petitioner. 10. Thereupon the learned Additional Sessions Judge, on 11th March, 1987, passed following order which is recorded in she Order Sheet :– "Order No. 6 dated 11.3.1987. Seen report of the Probation Officer after breaking open the sealed cover. Probation Officer recommended the offender to deal with section 4 of the Probation Offenders Act. Offender Chittaranjan Khatua on bail is present in the dock. Heard learned P. P. who is present in Court. Recommendation made by the P. Officer is accepted in terms of Order No.4 dated 10th January, 1987. Bonds furnished by the surety arc accepted. Offender Chittaranjan Khatua is released on probation under the supervision of the P. Officer for two years as per Order No.4 dated 10th January, 1987. The Probation Officer will submit his periodical report at the interval of six months. Put up on 10.9.1987 for orders. Bonds furnished by the surety arc accepted. Offender Chittaranjan Khatua is released on probation under the supervision of the P. Officer for two years as per Order No.4 dated 10th January, 1987. The Probation Officer will submit his periodical report at the interval of six months. Put up on 10.9.1987 for orders. The attention of the convicted accused person is drawn to abide by the terms and conditions mentioned in the Bond, failing which he will be called upon to undergo sentence which will be pronounced." 11. The said Supervision Order made on 11th March, 1987 contained, inter alia, the following conditions that "(i) he would not quit the area without the written permission of the Probation Officer; and (ii) he would not commit any offence punishable by any law in force in India." 12. There is another condition also that "he would, during the period of probation, keep the Probation Officer advised of his place of residence and means of livelihood." 13. The petitioner was released on probation on 11th March, 1987. On 30th March, 1987, a First Information Report was lodged at Nandigram Police Station, and a case was registered as Nandigram P. S. Case No.8 on 30th March, 1987. The F.I.R was lodged by one Nabin Chandra Khatua. The allegation was that on 30th March, 1987 at about 11-00/11-30 A. M. the accused Chittaranjan Khatua led a group of miscreants and attacked the said complainant and his relations with deadly weapons and the accused Chittaranjan Khatua caused injury to the complainant by an arrow and also struck on the chest of the complainant's father, Niranjan, with a Bhali which caused his instantaneous death The complainant's another brother was also seriously injured by some of the members being headed by the accused Chittaranjan Khatua. 14. On the information of the said Nabin Chandra Khatua, the Nandigram Police registered a case under sections 147/148/149/323/324/ 326 and 304 of the Indian Penal Code. The petitioner, however, absconded. 15. Evenafter, the aforesaid First Information Report was lodged, the Probation Officer on 31st July, 1987 submitted a report to the learned Additional Sessions Judge, wherein he stated as follows :– "Paid visit towards (sic) residence of Chittaranjan, the probationer. He is stated to have gone outside his home. His relatives whoever encounter (sic) are protective (sic) to the probationer and from them nothing adverse is reported." 16. He is stated to have gone outside his home. His relatives whoever encounter (sic) are protective (sic) to the probationer and from them nothing adverse is reported." 16. On 23rd June the Investigating Officer submitted a report in which he said that during investigation a prima facie case of offence under sections 147/148/149/323/324/326 and 304 of the I.P.C. had been established and accordingly the Investigating Officer submitted a charge sheet against the petitioner and 9 others. In the charge sheet he has, inter alia, stated as follows :– "I, therefore, beg to submit this C/S. No. 41 dated 23.6.1987 under sections 147/148/ 149/323/324 and 304 I.P.C. against all of the above noted accused persons to stand their trial in the court of law after showing accused 1. Chittaranjan Khatua, 2. Satya Ranjan Khatua and 3. Nanigopal @ Bhanu Khatua, all sons of late Khirode of Kamalpur as absconder. W +P+A order may kindly be issued against all of the absconding accused." 17. Be it recorded that Anil Kumar Khatua, who was the surety for the accused Chittaranjan Khatua is accused No.2 in the said case. 18. The accused Chittaranjan Khatua surrendered on 3rd September, 1987 and made an application for bail which was rejected by the learned Sessions Judge by his Order No.2 dated 11th September, 1987. The said order reads as follows :– "This is an application under section 439 Cr. P. C. for one Chittaranjan Khatua. He surrendered himself before the court below on 3.9.1987 as a charge sheet under section 304 I.P.C. was filed against him. Heard the learned lawyer and the ld. P. P. Perused the lower court record. It was contended before me that when charge-sheet has already been submitted there is no further necessity of detaining this applicant in custody. It was stated that he was a Post Master of the village post office. The learned P. P. submitted that prior to the commission of the present offence this accused stood convicted in a Sessions trail No. XXI(Nov.) 1986 and considering his first offence he was released on probation of good conduct. This fact does not contradict during submission. From the records it appears that the F.I.R. was lodged on 30.3.1987 and according to the F.I.R. this man had dealt the fatal blow on the deceased by a Bhali. There is no reason on record for his absence since 30.3.1987 till 10.9.1987. This fact does not contradict during submission. From the records it appears that the F.I.R. was lodged on 30.3.1987 and according to the F.I.R. this man had dealt the fatal blow on the deceased by a Bhali. There is no reason on record for his absence since 30.3.1987 till 10.9.1987. The allegations are serious. Absconsion is a worst Circumstance against him and together with it I keep in view the submission of the learned P. P. that in a prior conviction for a sessions trial this petitioner was shown leniency and was released on probation of good conduct. Leniency may not be shown for a second occasion when there is prima facie allegation that he caused the death of the deceased and then took to his heels for months together. The prayer for bail stands rejected." (Underlined by us). 19. On 10th September, 1987, the Additional Sessions Judge, Midnapore, considering the report dated 31st July, 1987 of the Probation Officer, remarked as follows :– "Seen report of the Probation Officer. There is no adverse remark against convict. Report to be kept in the record to 16.12.1987." 20. On 2nd November, 1987, one Srijib Chandra Das, brother of the said victim, Khageswar Das, made an application wherein he stated that the charge sheet was submitted after completion of investigation against the petitioner and his brother Anil Kumar Khatua under sections 147/148/149/323/324/326/304 I. P. C. in connection with Nandigram Police Case No.8 of 30th March, 1987. It was also stated therein that the accused Chittaranjan Khatua was taken into custody on 3rd September, 1987 after long abscondence. He was in jail custody since then. The learned Sessions Judge rejected his prayer for bail on 11th September, 1987. He has also stated as follows:– "The accused Chittaranjan Khatua is a notorious and habituated criminal and is also very much prone to commit murder one after another. He has let loose a reign of terror by his dangerous and desperate character and ugly activities. He has violated the terms and conditions of his bonds which were filed in S. T. Case No. XXI/ November, 1986. Besides it, his surety, Anil Khatua, who was directed to keep actual control over his brother accused Chittaranjan Khatua, is himself an accused along with the said Chittaranjan and others in the aforesaid murder case. He has violated the terms and conditions of his bonds which were filed in S. T. Case No. XXI/ November, 1986. Besides it, his surety, Anil Khatua, who was directed to keep actual control over his brother accused Chittaranjan Khatua, is himself an accused along with the said Chittaranjan and others in the aforesaid murder case. The said Anil Khatua was also arrested by police in connection with Nandigram P. S. Case No. 8 dated 30th March, 1987. In view of the aforesaid circumstances, neither Anil Khatua is entitled to stand surely for his brother Chittaranjan Khatua nor accused Chittaranjan is entitled to be released on probation under section 4 of the Probation of Offenders Act. Accused Chittaranjan’s flagrant violation and utter disobedience of the terms and conditions imposed upon him by the learned Court within a few months disentitles him completely to enjoy the fruits and benefits of Probation of Offenders Act. Accordingly, he should be called upon to receive the sentence." 21. Under the Circumstances the said Srijib Das prayed that notice be issued to the accused person his surety and a report of the Police of Nandigram P. S., and also the records of Nandigram Police Case No. 8 of 30th March, 1987 be called for and the accused Chittaranjan Khatua be called upon to receive .sentence. Upon the said application an order was passed by the Additional Sessions Judge on 2nd September, 1987, being Order No.8. He directed that a copy of the said petition be forwarded to the Probation Officer calling for his report. The matter was adjourned till 19th November, 1987. 22. The Probation Officer by his letter of 18th November, 1987 informed the Additional Sessions Judge that he was investigating the matter and would submit his report later. He was allowed a fortnight’s time to make his report. 23. On 4th December, 1987 the Probation Officer submitted his report to the following effect :– "It is learnt on investigation, that the matter regarding the probationer in your reference No. 439 dated 3.11.87 is sub-judice. However, he did not violate the terms and conditions of the supervision Order issued by the learned Court to be of good behaviour." (underlined by us). 24. However, he did not violate the terms and conditions of the supervision Order issued by the learned Court to be of good behaviour." (underlined by us). 24. Thereafter, on 22nd December, 1987 a petition was made by Srijib Chandra Das where he stated "the said report of 4th December, 1987 of the Probation Officer is totally against the real state of affairs. It is an influenced and purchased report by the interested person. The Officer is not whisper about the Nandigram P. S. Case No.8 dated 30-3-87 which is pending, nor did he made any actual and physical contact which the accused person or any other persons of the locality in order to ascertain about his present conduct, demeanour, behaviour and character". 25. On 19th January, 1988, an application was made by the Public Prosecutor under section 9 of the said Act. In the said, application he has stated that "it will appear from the proceeding of Nandigram P. S. Case No.8(3) of 1987 that the accused Chittaranjan Khatua has violated the conditions of Bond. But unfortunately the Probation Officer does not think so. The report of the Probation Officer is misleading and cannot be relied upon. It is, therefore, necessary to take appropriate steps to require Chittaranjan Khatua to attend the Court and after hearing pass necessary order to sentence the said Chittaranjan Khatua for the original offence". 26. On 14th February, 1988 notice to show cause was issued to the petitioner as to why he shall not be sentenced for breach of the terms of the Bond. 27. On 22ad February, 1988, the Probation Officer submitted a further report where he has stated as follows :– "Paid visit to the house of the Probationer Chittaranjan Khatua on 20-2-1988 and met him. Made contacts also with his family members and neighbour Bamdeb Das, Bhola Das, Subol Chandra Barne and Dibakar Bera. Two copies of two neighbour's statements are enclosed. An allegation raised also is stated to be sub-judice, but the same is not contradicting his probation period. The probationer is doing domestic works and living with his brothers. He is abiding by the terms and conditions of Supervision Order and behaving well." 28. Two copies of two neighbour's statements are enclosed. An allegation raised also is stated to be sub-judice, but the same is not contradicting his probation period. The probationer is doing domestic works and living with his brothers. He is abiding by the terms and conditions of Supervision Order and behaving well." 28. foe petitioner filed a petition on 22nd April, 1988 purporting to his reply to the show cause in which he stated as follows :– "The petition under section 9 of the Probation of Offenders Act filed by the State is premature and liable to be dismissed. It is not correct to state that from the proceeding of the Nandigram P. S. Case No. 8(3) 1987 that the accused Chittaranjan Khatua has violated the condition of Bond. It is not correct to state that the report of the Probation Officer is misleading and cannot be relied upon. It may be mentioned here that Nandigram P. S. Case No. 8(3) 1987 corresponding to G. R. Case No. 263/87 has been committed to the Court of Sessions by the learned S. D. J. M. Tamluk and the accused persons including Chittaranjan Khatua appear before the learned Sessions Judge, Midnapore, and the learned Sessions Judge has been pleased to transfer the Case to the court of the Additional Sessions Judge, 1st Court, Midnapore, for your honour's kind disposal, which has been numbered as S. Tr. No. III of March, 88. From the record of S. Tr. Case No. III of March, 88 it will appear that prosecution has suppressed the genesis and origin of the prosecution case. So it is necessary to call for the record of S. Tr. Case No. III of March, 88 which is lying in your honour's Court." 29. Accordingly, he prayed for calling for the record of S. Tr. Case No. III of March, 88 which is, pending in the Court of the Additional Sessions Judge, 1st Court, Midnapore and for rejection of the petition after hearing. It may be mentioned that be only dealt with the petition under sec. 9 filed by the prosecution. He did not deal with the application made by Srijib Das. Case No. III of March, 88 which is, pending in the Court of the Additional Sessions Judge, 1st Court, Midnapore and for rejection of the petition after hearing. It may be mentioned that be only dealt with the petition under sec. 9 filed by the prosecution. He did not deal with the application made by Srijib Das. The only contention of the petitioner, as it appears, was that the said petition of the prosecution was premature because he was convicted of any further offence till then petitioner has not denied any of the allegations made in these two petitions filed by the said Srijib Das and the prosecution. On 4th June, 1988 the following report was submitted by the Probation Officer : "Paid visit to the house of the released probation Chittaranjan Khatua at Kamalpur village. On 3.6.88 met him and made contracts with the other members of the family where be resides. Made contracts also with his local neighbours, Shri Shyamapada Gayen and Shri Subal Chandra Manna and others whose statements (two copies are enclosed) are favourable. An allegation rise (sic) also about him is still under investigation and sub-judice and so any remark cannot be made for maintaining decorum and the honour of the Court concerned. However in pursuance of section 14 of the Probation of Offenders Act, 1958 and Rule 22 of the Probation of Offenders Rules, 1960 I am to assist the probationer in avoiding the company of undesirable persons to protect him from being harassed by them. He is attending my office regularly according to my directions and abiding by the terms and conditions of the Court's Supervision Order very sincerely. He is also behaving well to keep peace. Sd/- Illegible 4. 6. 88. Probation Officer, Tamluk Contai." 30. After considering the aforesaid report and after considering the facts and circumstances of this case the learned Additional Sessions Judge by his order dated 8th June, 1988 held that the petitioner had committed breach of good behaviour and accordingly the bond was forfeited and the petitioner was sentenced to suffer rigorous imprisonment for 5 years. The said order is as follows :– Order No. 21 dated 8. 6.88 :– The accused person is present in the dock. The said order is as follows :– Order No. 21 dated 8. 6.88 :– The accused person is present in the dock. This is an application under section 9 of the Probation of Offenders Act by the State for passing sentence on the accused person for non-compliance with the terms of the bond. The periodical report is received today from the Probation Officer. The accused person was enlarged on probation after conviction on a charge under section 304 Part II of the I.P.C. on a plea of guilt. He is again to face a trial in S. T. Case No. III of March, 1988 under sections 148, 304 Part I/149/326/149 etc., of the I. P. C. which is to commence on and from 12.12.88. It is significant that offence under sec. 304 Part II of the I. P. C. was serious enough charge. His age, antecedent, etc. were considered which earned for him the lenient treatment he received on the basis of the report of the Probation Officer. Indeed, he is yet to be convicted in the second trial. On perusal of the records, charges under the above sections have been framed against him. Probation is based on humanitarian grounds, normality and ultimate trust in the redemption of a fallen man. When the same man faces heinous charges successively, it is obvious that he betrayed the trust and commits a breach of the condition of good behaviour. The bond under sec. 4(4) of the Probation of Offenders Act runs (2) "that I shall observe the conditions specified in the supervision order passed in my case......" The bond under sec 4(1) of the Act reads........(2) to keep peace and not to commit any act that may occasion a breach of the peace; (3) to be of good bebaviour.........." Supervision Order is "(7) that be will not commit any offence punishable by any law in force in India... ......" The learned Advocate for the accused person based his argument on the ground that the second trial against the accused person is sub-judice. The report of the Probation Officer is also in the same vein. It is not so much the legal technicality of a conviction as the fairness and human conduct of a person who faces serious charges after being enlarged on probation. The report of the Probation Officer is also in the same vein. It is not so much the legal technicality of a conviction as the fairness and human conduct of a person who faces serious charges after being enlarged on probation. So the report of the Probation Officer stands rejected and the submission made by the learned Advocate cannot be accepted. Learned Advocate for the accused person referred to section 9(3)(b) of the Probation of Offenders Act and submitted that for the first failure, he may be fined not exceeding Rs. 50/-. In this case, the breach is so serious that it is s fit case where section 9(3)(a) of the Act should be invoked for sentencing him for the original offence. Ordered that the accused Chittaranjan Khatua is sentenced to undergo rigorous imprisonment for five years subject to section 428 of the Cr. P. C." 31. The petitioner was in jail from 3rd September, 1987 till 20th June, 1988 when the High Court directed that the petitioner be released on bail to the satisfaction of the Chief Judicial Magistrate, Midnapore. 32. In the light of the aforesaid facts the contentions of the learned Counsel for the petitioner have to be examined. It has been contended by Mr. Bose that under section 9(3) the Court if satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into, may sentence for the original offence. This satisfaction has to be arrived at on objective material. It is also his contention that in the instant case the allegation against the petitioner is that a charge has been framed against the petitioner, inter alia, under section 304 Part II of Indian Penal Code but unless he is convicted for the offence or any other offence it cannot be said that he failed to comply with the conditions of the bonds executed by him. One of the conditions of such bonds was that the petitioner during the period of probation would comply with the supervision order which in term contains a condition that the offender would not commit any offence punishable in law. The contention is that the learned Judge misdirected himself in law in proceeding on the footing that the petitioner has already committed any offence before the trial is concluded. The contention is that the learned Judge misdirected himself in law in proceeding on the footing that the petitioner has already committed any offence before the trial is concluded. It is true that the charge has been framed against him but until and unless in the trial the petitioner is found guilty beyond reasonable doubt, the petitioner shall be presumed to be innocent. In other words, the contention is that unless the petitioner is convicted of any offence, it cannot be said that he has failed to comply with the conditions imposed by the bonds and consequently the supervision order. He has also submitted that satisfaction of the learned Judge must be based on evidence. It has to be tried like a case before any action under section 9(3) is taken. 33. At this stage it is convenient to set out the relevant portion of section 9(1) and section 9(3) of the Act. Section 9(3) if the Court which passes an order under section 4 in respect of an offender or any Court which could have dealt with the offender in respect of his original offence has reason to believe, on the report of a probation officer or otherwise that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may issue a warrant for his arrest or may, if it think fit, issue a summons to him his and his sureties, if any, requiring him or them to attend before it as such time as may be specified in the summons. Section 9(3) if the Court after hearing the case, is satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may forthwith– (a) sentence him for the original offence ; or (b) where the failure is for the first time, then, without prejudice to the continuance in force of the bond, impose upon him a penalty not exceeding fifty rupees. 34. Before section 9(3) can be invoked a summons has to be issued to the offender to show cause as to why he should not be dealt with for non-compliance with the condition of bond. 34. Before section 9(3) can be invoked a summons has to be issued to the offender to show cause as to why he should not be dealt with for non-compliance with the condition of bond. Sub-section (1) of section 9 provides that the Court must have reason to believe that the offender has failed to observe any of the conditions of the bond or bonds and thereupon the Court will issue summons to the offenders. Thereafter the Court upon hearing the case if satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it ay sentence him for the original offence. 35. The expression reason to believe postulates that the belief must be based on reasons which are relevant and material. The reasons for the belief must have rational connection or relevant bearing the formation of the belief and must not be extraneous or irrelevant to the purpose of section 9. 36. Under section 9(1) the Court has to come to a prima facie finding whether on the allegations made if they are taken to be correct, a case has been made out that the offender has failed to observe any of the conditions of the bond. But the main question arises thereafter as to how the Court should be satisfied that, as a matter of fact, the offender has failed to observe any of the conditions of the bond or bonds entered into by him. No indication has been given in the Act, how such satisfaction has to be arrived at by the Court. Mr. Bose has laid emphasis on the words “case” as used in section 9(3). In ordinary usage, the word “case” means event, happening, situation and circumstance, but as a general term it means an action, cause, suit or controversy. It also means a question contested before a court of justice, an aggregate of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice. It also means judicial proceeding for the determination of a controversy between parties wherein rights are enforced or protected, or wrongs are prevented or redressed. In other words, it includes any proceeding judicial in its nature. 37. It also means judicial proceeding for the determination of a controversy between parties wherein rights are enforced or protected, or wrongs are prevented or redressed. In other words, it includes any proceeding judicial in its nature. 37. If that be position, then before ay satisfaction is arrived at by the Court, the Court has to hear the application made for cancellation of the supervision order of the offender on evidence and thereafter the Court has to come to a definite finding whether any condition of the Bond has been violated or not. Our attention has not been drawn to any rule of procedure for determination of this question by the learned Judge in the application made for revocation of the supervision order. We may, however, usefully refer to the English Law on this subject and the practice followed there. 38. Section 2(1) of the Powers of Criminal Court Act, 1973 provides :– “Where a court by or before which a person of or over seventeen years of age is convicted of an offence (not being an offence the sentence for which is fixed by law) is of opinion that having regard to the circumstances including the nature of the offence and the character of the offender, it is expedient to so so, the court may, instead of sentencing him, make a probation order, that is to say, an that is to say, an order requiring him to be under the supervision of a probation for a period to be specified in the order of not less than six months nor more than three years.” 39. Under section 2(3) a probation order may, subject to the restrictions mentioned below : “Require the offender to comply during the whole or any part of the probation period such requirements as the court having regard to the circumstances of the case, considers necessary for securing the good conduct of the offenders or for preventing a repetition by him of the same offence or the commission of other offences." 40. Common requirements are that the probationer should be of good behaviour and keep the peace, keep in touch with his probation officer, and notify him of any change of address ; etc. 41. Section 6 of the aforesaid Act deals with the breach of requirement of probation order. Common requirements are that the probationer should be of good behaviour and keep the peace, keep in touch with his probation officer, and notify him of any change of address ; etc. 41. Section 6 of the aforesaid Act deals with the breach of requirement of probation order. Sub-section (3) provides that it is proved to the satisfaction of the court before which a probationer appears or is brought that the probationer has failed to comply with any of the requirements of the probation order, then subject to the following provisions of this sub-section, that court may deal with him in respect of the failure in any one of the following ways, that is to say :– (a) it may impose on him a fine not exceeding £ 50 ; (b) it may make a community service order in respect of him ; (c) it may make an order requiring him to attend at an attendance centre ; or (d) it may deal with him for the offence in respect of which the probation order was made in any manner in which it could deal with him if he had just been convicted before that court of that offence. 42. Separate provision has also been made in section 8 for commission of further offence by the probationer during the period of probation. Regarding Commission of further offence by the probationer section 8(1) provides as follows :– "If it appears to the Court which passed the probation order that a person in whose case a probation order has been convicted by a court of an offence committed during the period of probation, and has been dealt with in respect of that offence, the Court may issue summon requiring the person to appear." 43. Section 8(7) provides that "Where it is proved to the satisfaction of the Court" by which a probation order was made, that the person in whose case the order was made has been "convicted of an offence" committed during the period of probation, "the court may deal with him, for the offence for which the order was made, in any manner in which it could deal with him if he had just been convicted by or before that court of that offence." It may be mentioned that similar provisions were made in Criminal Justice Act, 1948 which have been repealed by the Powers of Criminal Courts Act, 1973. 44. Thus, under the provisions of the English Statute the offender is liable to be brought before the Court for breach of any condition. If the breach is established, the offender may be fined or the Court may deal with him in any manner in which it could have dealt with him if he had just been convicted of the offence. The offender is also liable to be sentenced for the offence in respect of which the order was made if he convicted of a further offence during the currency of the order. 45. The procedure for dealing with a breach of probation, whether by commission of a further offence, or not is for the Judge without a jury to decide whether probationer is in breach. This has been laid down in section 12(3) of the Powers of Criminal Courts Act, 1973 (corresponding to section 11(4) of the Criminal Justice Act, 1948) which provides that any question whether a probation has failed to comply with the requirement of the probation order and any question whether any person in whose case a probation order has been made, has been convicted of an offence committed during the probation period shall be determined by the Court and not by the verdict of a Jury. The Court of Criminal Appeal in England has laid down the procedure to be followed if the probationer is in breach. Reference may be made to the decision in (1) R. V. Devine reported in (1956)1 All ER 548. There the Court of Criminal Appeal consisting of Lord Goddard, C.J. and Hilbery and Byrne, JJ. held as follows :– "There is nothing in this application for leave to appeal against sentence, and it is dismissed. The Court, however, desires notice to be taken with regard to a point of procedure which it has observed as the result of considering this application. The point is this. Where a prisoner is brought before a court for breach or a probation order, it should be put to him, when he is arraigned before the court, in the clearest possible terms and he should be asked to say whether be admits it or not. The point is this. Where a prisoner is brought before a court for breach or a probation order, it should be put to him, when he is arraigned before the court, in the clearest possible terms and he should be asked to say whether be admits it or not. The terms in which the matter should be put to him are : first to say where he was convicted and what happened to him, then to tell him how the breach is alleged to have taken place, and, if it be by a further conviction, then to tell him the time of the conviction and the adjudication of the court. He should next be asked to say whether he admits those facts. If that is done, there is no further difficulty. If that is not done, then, of course, it being a trial, albeit without a jury, the prisoner will have to be asked whether be desires to give evidence or call witnesses, and the court will have to pronounce on whether they find the breach of the order has been proved. But it is desirable that the proceedings should begin by the matter being put clearly to the prisoner and for him to be asked whether he admits the allegation with regard to it." 46. Thus it will be evident from the said judgment that if the probationer denies the breach, the probationer may give and call evidence. Similar view has been taken by the Court of Criminal Appeal in England in (2) R. v. Long reported in (1959)3 All ER 559, the facts of the case would appear from the judgment delivered by Parker, C. J. The appellant pleaded guilty at Southampton borough sessions in January, 1958, to store-breaking, and he was placed on probation for three years. Apparently he had broken into a canteen but left without taking anything. Some months later, on May 27, 1959, he was given three years "imprisonment at Grims by borough sessions for the larceny of a trailer and nine others offences, were taken into consideration. On July 21, he was brought before Southampton borough sessions on breach of his probation, and he was then sentenced by the recorder to eight years" preventive detention. Some months later, on May 27, 1959, he was given three years "imprisonment at Grims by borough sessions for the larceny of a trailer and nine others offences, were taken into consideration. On July 21, he was brought before Southampton borough sessions on breach of his probation, and he was then sentenced by the recorder to eight years" preventive detention. There Lord Chief Justice Parker speaking for the Court of Criminal Appeal observed as follows :– "Before leaving this case, I should draw attention to the fact that the procedure laid down for the proof of a subsequent offence when a man is brought up for breach of probation was not observed. The matter was put by the clerk to the prisoner in the most general terms. He said : "Do you admit that at Southamption Borough Quarter Sessions on January 27, 1958, a probation order for three years was made against you on your conviction for store-breaking with intent ?"–So far, so good-then he goes on : "and that having committed a further offence you have been produced at these sessions for sentence". The Court would like to draw attention again to the necessity for following the procedure which was laid down by this court in R. v. Devine (Supra)." 47. In (3) R. v. Holmes reported in (1966) 1 All ER 17, Lord Parker, C. J. held as follows:– "In giving the judgment of the court dismissing the applicant's application for leave to appeal against a sentence of two years' imprisonment for an offence of shop-breaking and larceny for which he had originally been put on probation for two years in January, 1964, gave the following direction on the procedure to be followed in dealing with breaches of probation : The Court would like to draw attention once again to the proper procedure for dealing with cases of breach of probation. The procedure was laid down as long ago as 1956 in the case of R. v. Devine (Supra), and has been repeated constantly since." 48. The court proceeded to hold as follows :– "The Court draws attention once again to that procedure, laid down in R. v. Devine (Supra), because in many applications which come to this court it can be seen that procedure has not been followed. The court proceeded to hold as follows :– "The Court draws attention once again to that procedure, laid down in R. v. Devine (Supra), because in many applications which come to this court it can be seen that procedure has not been followed. This is a typical case where those matters were never put to the applicant and he was never called on personally to admit them. If one looks at the transcript, one finds a detective constable being called who read out antecedents and record of previous convictions ; when he was asked whether he had been present in court when the applicant had been put on probation, he said : "No Sir" Then a probation officer was called, and the first thing that happened was that Counsel for the prosecution said : "The probation order being an order of this court I suppose does not require strict proof", and the deputy Chairman said : "We have the original indictment". However, in fact the probation officer was asked if he recognised the applicant in court ; he said that he did ; and he said also that the applicant had been placed on probation in his (the witness) care for a period of two years. So far as the present case is concerned, this applicant was represented by Counsel of some experience, and it is quite clear that if only through his Counsel not asking questions, the applicant through his Counsel was admitting the breach. So far as this case is concerned, therefore, no harm has been done by not following the proper procedure. The court, however, would like once again to say that they expect the proper procedure to be allowed in all similar cases. This application is refused." 49. In the Probation of Offenders Act, 1958 the expression used is that "if the Court, after hearing the case, is satisfied" whereas in the English statute the expression used is "if it is proved to the satisfaction of the court". In our view, the court can only be satisfied if there are materials before the court and such materials have to be placed before the Court as required in a judicial proceeding. In our view, the court can only be satisfied if there are materials before the court and such materials have to be placed before the Court as required in a judicial proceeding. Therefore there will not be much difference in approach of Indian Courts and English Court, with regard to the procedure to be adopted for satisfaction of the court whether or not there is any breach of the probation. 50. In English law separate provisions have been made for breach of requirement of probation order and commission on further offence by a probationer during the period of probation but in both the cases it has to be proved to the satisfaction of the Court that there has been a breach of requirement of probation order or offender has been convicted of a further offence during the period of probation. One thing, therefore, is apparent that unless the offender has been convicted of any further offence during the period of probation, the question of dealing with him for the offence for which the probation order was made would not arise at all. 51. In the case before, us one of the conditions of the Bond was that the petitioner would comply with the conditions contained in the supervision order. The supervision order provides inter alia, that the petitioner will not commit any offence punishable by any law in force in India. 52. We are unable to read the order of the learned Judge made under section 9(3) in the manner Mr. Bose wants us to read. He has contended that the learned Judge has held that there was a breach of condition as the petitioner was charged with further offence under section 304 Part II of the Indian Penal Code. This is not a correct reading of the order of the learned Judge. In our view, apart from the question whether the breach of condition has to be proved as is required in a judicial proceeding, the Judge dealing with the probationer cannot come to the satisfaction that the petitioner has committed a further offence until a conviction in fact has been made. Mere issuance of charge-sheet will not be enough for the purpose of holding that the probationer has committed an offence. This will virtually amount to pre-judging the issue and pre-judiciary the trial of the offence for which the probationer has been charged. Mere issuance of charge-sheet will not be enough for the purpose of holding that the probationer has committed an offence. This will virtually amount to pre-judging the issue and pre-judiciary the trial of the offence for which the probationer has been charged. In our view, it is also not open to the Court dealing with a probationer for breach of the condition of bond to take evidence whether the probationer has committed a further offence or not, when the trial for an offence alleged to have been committed by the probationer is pending. In such a case, the Court which deals with the probationer who, is stated to be in breach has to wait until the trial for the further offence is over. In England, it has been specifically provided that only when the probationer has been convicted of a further offence, the question of dealing with him for the earlier offence, when he was released on probation, would arise. In our view, therefore, the framing of the charge by itself cannot be held to be a ground for arriving at the satisfaction that the offender has committed a further offence during the period of probation. This will be contrary to all norms of justice and fair play and will seriously pre-judice the defence of the accused in the pending trial where a charge has been framed. For the reasons aforesaid, we are of the view that the provisions of section 9(3) cannot be invoked on the ground that the probationer has committed a further offence during the period of probation when the trial on the charge framed is pending. 53. In the case before us, the question is whether there was any breach of condition of the Bond. Let us now turn to the condition of the bonds. The bond which was executed by the petitioner under sec. 4(1) of the Act provides that the petitioner binds himself during two years probationary period, inter alia, to keep peace and not to commit any act that may occasion a breach of peace and to be of good behaviour. In the bond under section 4(4) he has bound himself that be would observe the conditions of the supervision order. Firstly, one of the conditions of the first bond is that he shall be of good behaviour. In the bond under section 4(4) he has bound himself that be would observe the conditions of the supervision order. Firstly, one of the conditions of the first bond is that he shall be of good behaviour. Secondly, one of the conditions of the second bond is that be will observe the condition of the supervision order. Thirdly, the supervision order provides that the petitioner would keep the Probation Officer informed about his place of residence and means of livelihood. He will not quit the area where he has been residing without permission of Probation Officer. The question therefore whether he has committed any breach of the bonds and the supervision order. 54. As indicated earlier in connection with the other case where charge has been framed against the petitioner, FIR as lodged on 30th March, 1987 within 20 days after his release on probation. Since 30th Much, 1987, he has been absconding and ultimately he surrendered on 3rd September, 1987. He was taken to custody and his bail application was refused. He remained in custody upto 20th April, 1988. Thereafter by the order of the High Court, he was granted bail on 21st April, 1988. Another fact has also to be mentioned here is that on 31st July, 1987 Probation Officer submitted a report stating therein that be paid a visit to the residence of the petitioner. He says "he is stated to have gone outside of his home". His relatives whoever encounter (Sic) are protective "(Sic) to the probationer and from them nothing adverse is reported". This is absolutely an incorrect statement inasmuch as at that, time the petitioner was absconding. The petitioner did not inform him that he left the residence. The Probation Officer has not discharged his duties properly. He should have enquired of the whereabouts of the petitioner and intimated the Court which passed the order of probation. On 7th December, 1987, he submitted another report wherein he mentioned as follows:– "It is learnt on investigation that the matter regarding probationer is sub-judice. However, he did not violate the terms and conditions of the probation order by the learned Court......." He again misled the court because he did not inform the court that the petitioner was taken to custody on 3rd September, 1987 and he was still in the custody. However, he did not violate the terms and conditions of the probation order by the learned Court......." He again misled the court because he did not inform the court that the petitioner was taken to custody on 3rd September, 1987 and he was still in the custody. He did not inform whether the charge had been framed in that case or not and what are the allegations made against him. He has not even mentioned about the charges levelled against him in the FIR. It may be mentioned that even after the charge-sheet was submitted by the Investigating Officer on 23rd June, 1987 in two subsequent reports dated 31st July, 1987 and 4th December, 1987, he did not make any whisper of the said charge-sheet. The question, that, now arises is can it be said that a person against whom FIR has been lodged and proceedings have been initiated and who absconded and did not surrender before the Court as required under the law, was of good behaviour. The Probation Officer has certified that he has not violated the conditions of the probation order to be of good behaviour. The condition of good behaviour is the condition of the Bond. Can it be said in the circumstances like this, that the petitioner complied with the condition to be of good behaviour ? The meaning of good behaviour is orderly and lawful conduct, behaviour such as is proper for peaceful and law-abiding citizen. A law abiding citizen when he is charged with an offence should not abscond. Abscond means to depart secretly and hide himself. He must come before the Court and face the trial and take all steps to defend himself. By not surrendering and absconding until 3rd September, 1987, he, in our view, committed a breach of the requirement of condition of the bond that he would be of good behaviour. He has also violated the conditions of supervision order by being away from his residence, which he could not have done, without the leave of the Probation Officer. He also did not intimate about his means of livelihood inasmuch as during the period he was absconding he could not have worked as extra departmental post master. Strangely enough the Probation Officer did not make any enquiry or investigation but certified about his good behaviour. This is how a Probation Officer behaved. 55. He also did not intimate about his means of livelihood inasmuch as during the period he was absconding he could not have worked as extra departmental post master. Strangely enough the Probation Officer did not make any enquiry or investigation but certified about his good behaviour. This is how a Probation Officer behaved. 55. The learned Additional Sessions Judge, although has mentioned that when the probationer faces fresh charges successively, it is obvious that he betrays the trust and commits breach of trust of good behaviour. But his ultimate decision is not based on the aforesaid observation. He was, in fact, concerned with the breach of the condition to be of good behaviour. In our view the learned Judge even if has taken into consideration as a fact that the probationer has been indicated for a grave offence, he did not misdirect himself in law inasmuch as his ultimate conclusion is not based on that fact alone. 56. In dealing with a probationer for the offence for which the probation order was made the Court must deal with him in the light of all circumstances and conditions which existed at that time, not merely those that existed when he was first convicted. A probation order releases the offender from custody but required him to be under the supervision of a Probation Officer for a period of two years. On proof of the probationer's failure to comply with the terms of the order, the Court may sentence him for the original offence. In this case, the learned Assistant Sessions Judge did not hold, as contended by the learned Advocate for the petitioner, that because the petitioner was charged with an offence punishable under section 304. Part II of the Indian Panel Code, his probation order was revoked and sentence was imposed for original offence. The learned Judge has taken into account all the facts and circumstances existing at that time. He was of the view that the condition of good behaviour was violated. It is no doubt true that the probationer's failure to comply with the probation order has to be proved on evidence. In the case before us, it was not disputed that the petitioner was absconding when the first Information Report was lodged on 30th March, 1987, implicating him. It is no doubt true that the probationer's failure to comply with the probation order has to be proved on evidence. In the case before us, it was not disputed that the petitioner was absconding when the first Information Report was lodged on 30th March, 1987, implicating him. This fact is also apparent from the order refusing to grant bail to the petitioner when he surrendered on 4th September, 1987. At the instance of the petitioner, the records in the other proceeding in which charge was framed against the petitioner were brought before the learned Addl. Sessions Judge while dealing with the petitioner for violation of the conditions of the bond. We have referred to what the petitioner said in his petition opposing the prayer of the Public Prosecutor for revocation of the probation order and dealing him with the original offence. He did not deny categorically the breach. He did not give and call evidence to rebut what was already on record. In the instant case the Court has reason to believe that the offender has failed to observe any of the conditions of the bond. Such belief was formed on the basis of the materials placed before the Court by one Srijib Das, the brother of the victim in the case where the petitioner was convicted and thereupon released on probation and in the application made by the public prosecutor. 57. On the facts and circumstances of the case, we are of the view that the undisputed facts unmistakably point out that the petitioner failed to comply with the requirement of the bond as regards good behaviour during the period of probation. 58. Mr. Bose then contended that the breach of condition of good behaviour ought to have been proved in the proceeding after giving the probationer opportunity of hearing. Since it was not done, the matter should be restored to the file of the learned Additional Sessions Judge for fresh consideration. In our view, this contention has no substance. Where the probationer does not deny the breach, the question of calling evidence does not arise. If he denies the breach, he must give and call evidence. The petitioner relied on the records which proved his failure to comply with the requirement of the law. In such a case, fresh hearing would serve no purpose. Where the probationer does not deny the breach, the question of calling evidence does not arise. If he denies the breach, he must give and call evidence. The petitioner relied on the records which proved his failure to comply with the requirement of the law. In such a case, fresh hearing would serve no purpose. It will be a meaningless pursuit for ensuring procedural formality as justice has not been denied to the probationer. 59. For the reasons aforesaid, this application must fail. Mr. Bose has lastly contended that we shall consider the question of reducing the sentence. 60. Having regard to the facts and circumstances of the case, the age of the petitioner and tile fact that he was working as Extra-Departmental Post Master and the only earning member of the family, the ends of justice will be met if the sentence is reduced from five years to three years. The order under revision will stand modified to the extent indicated above. The petitioner is directed to surrender to the bail bond and serve out the sentence. This rule is thus disposed of. Hore, J. : I agree.