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Himachal Pradesh High Court · body

1999 DIGILAW 244 (HP)

SURJIT KAUR v. FAUJA SINGH

1999-11-11

M.R.VERMA

body1999
JUDGMENT M. R. Verma, J. (Oral): This Revision Petition is directed against the judgment dated 5.1.1998 passed by the learned Sessions Judge, Solan whereby while maintaining the conviction of the respondent- accused (herein-after referred to as the accused) under Section 323 read with Section 34 of the Indian Penal Code as recorded by the learned Sub Divisional Judicial Magistrate, Kandaghat, has enlarged the accused persons on probation. 2. Case of the prosecution, in brief, is that on 9.9.1992 at about 1.30 PM at M.E.S. Colony Kasauli one Surjeet Kaur an employee in M.E.S. was spreading clothes for the purpose of drying. As soon as she got inside her house she was asked by the accused persons to return the letter allegedly written by one Banti to her daughter Manmohan. PW-2 Surjit Kaur however refused to return the letter. On this all the accused came to the court-yard of the residence of Surjit Kaur and used filthy language against her. She was caught hold of by Rajinder Kaur and was struck by an iron rod by accused Fauja Singh. Accused Rajinder Kaur also gave her a blow with an iron rod on the left leg. She was saved by her daughters Paramjit Kaur and Manmohan Kaur who at that time returned from the School. The alleged tracepass and beating as aforesaid is alleged to be as a result of the common intention of the accused persons. The learned trial Magistrate vide his judgment dated 20.9.1997 found the accused guilty of the commission of an offence punishable under Section 323 read with Section 34 of the Indian Penal Code and accordingly convicted and sentenced them to undergo simple imprisonment for a period of one month each. 3. Feeling aggrieved the accused persons preferred an appeal in the Court of learned Session Judge, Solan who maintained the conviction and directed the release of the accused persons on probation as aforesaid. 4. Feeling aggrieved the present Revision Petition has been preferred by the injured complainant on the grounds that the learned Session Judge has erred in exercising the powers under Section 360 Cr. P.C, whereas the powers under Section 357 of the Code were not exercised, that accused could not be released on probation under Section 360 Cr. P.C. and that the leniency and sympathy shown to the accused is mis-placed and unwarranted. 5. P.C, whereas the powers under Section 357 of the Code were not exercised, that accused could not be released on probation under Section 360 Cr. P.C. and that the leniency and sympathy shown to the accused is mis-placed and unwarranted. 5. I have heard the learned counsel for the parties and have also gone through the records. 6. The relevant part of the impugned judgment directing release of the accused persons on probation reads as follows: "While confirming conviction of the accused under Section 323/34IPC, the sentence is modified and accused are ordered to be released on executing a bond of Rs.2000/- each with the surety each in the like amount for keeping peace, maintaining good behaviour for a period of one year. The bond be executed within 30 days to the satisfaction of learned Trial Magistrate, failing which the sentence so imposed by the learned Magistrate will remain intact." 7. Evidently it is not clear from the aforesaid operative part of the impugned judgment or from anything else on the record as to whether the learned Sessions Judge has passed this order under the provisions of Section 360 Cr. P.C. or the order has been passed under Section 4 of the Probation of Offenders Act, 1958 (here-in-after referred to as the Act). 8. In Himachal Pradesh Probation of Offenders Act, 1958 is in force. Therefore, the order for release of the accused persons on probation could have been passed by the learned Sessions Judge only under the provisions of the said Act. 9. A Full Bench of this Court in case State of H.P. vs. Lat Singh and others (1989(2) Sim.L.C81) has held as follows: "27. The fact that the Code is applicable to the whole of India, except the State of Jammu and Kashmir and some areas mentioned in Sub Section (2) of Section 1, with effect from April 1, 1974, is not in doubt. Section 360 of the Code is thus applicable with effect from that date. The applicability of the provisions of Probation of Offenders Act, 1958, to those States which may have enforced it, inspite of the enactment of Section 360 of the Code is envisaged by Section 361 itself. Section 360 of the Code is thus applicable with effect from that date. The applicability of the provisions of Probation of Offenders Act, 1958, to those States which may have enforced it, inspite of the enactment of Section 360 of the Code is envisaged by Section 361 itself. The only way to reconcile the co-existence of Section 360 of the Code with the provisions of the Probation of Offenders Act is to hold that the latter provisions alone will apply to the areas in which they have been enforced, to the exclusion of Section 3 60, while the provisions of Section 360 of the Code will operate in areas in which the provisions of Offenders Act have not been enforced." 10. Thus, in the State of Himachal Pradesh in view of the applicability of the said Act the order regarding release of the accused persons on probation could have been passed by the learned Sessions Judge under the appropriate provisions of the Act. Since the provisions under which the impugned order has been passed by the learned Sessions Judge has not been mentioned in the judgment, therefore, in the absence of having mentioned any provision it has to be presumed that he passed the order under the enabling provisions of the law, that is, under Section 4 of the Probation of Offenders Act, 1958. 11. There is no dispute that the learned Sessions Judge has passed the impugned order without calling for a report from the Probation Officer. Before exercising the powers under Section 4 of the Act the Court is under the obligation to call for a report from the Probation Officer and to consider such report in view of the provisions contained in Section 6 of the said Act. 12. A Division Bench of this Court in case Slate of H.P. vs. Shakti Parshad (1984, S.L.J. (HP.) - 289) has held as follows: "4. In view of sub-section( 10 of Section 360 of the Code, which provides that nothing in the said Section shall effect the provisions of the Act, the provisions of Section 4 and 6 would be attracted in the instant case. In view of sub-section( 10 of Section 360 of the Code, which provides that nothing in the said Section shall effect the provisions of the Act, the provisions of Section 4 and 6 would be attracted in the instant case. It is thus apparent that before releasing the respondent on probation of good conduct, the learned Session Judge was required to take into consideration the over-all circumstances of the case including the nature of the offence and the character and antecedents of the offender, as also the report, if any, of the Probation Officer. The impugned decision does not reveal that this legal position was present to the mind of the learned Session Judge. There is no reference in the relevant part of the judgment to the character, antecedents and family background of the respondent and no material on that aspect appears to be on record. If a Probation Officer is duly appointed for the District or Division, it was also essential for the learned Sessions Judge to have called for his report and to take such report into consideration. In view of the fact that this procedure, which is of primary importance before the order could be passed releasing an offender on probation, was not followed in the instant case, the impugned decision cannot be sustained and it is, therefore, quashed and set-aside." 13. In view of the law as already laid down by this Court the impugned judgment wherein the learned Session Judge has not called for I the report of the Probation Officer before passing the impugned order f cannot be sustained. 14. As a result this Revision Petition is allowed and the impugned order directing release of the accused on probation is set-aside and the case is remanded to the learned Session Judge with a direction to deal with the question of release, if any, of the accused on probation afresh in accordance with the law and in the light of the observations made here-in-above. 15. Parties through their counsel are directed to appear before the learned Sessions Judge, Solan on 6.12.1999.