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1999 DIGILAW 936 (MP)

MANOJ KUMAR v. STATE OF M. P.

1999-11-19

R.S.GARG

body1999
R. S. GARG, J. ( 1 ) EACH of the appellant being aggrieved by the judgment dated 31-8-1999 passed in Special Case No. 64/97 by the learned Special Judge (Atrocities) Shahdol, convicting each of the appellant under Sec. 323/34 IPC, and sentencing them to undergo sentence till rising of the Court and pay fine of Rs. 1,000/-, in default of payment of fine to undergo further R. I. for six months, have filed this appeal. ( 2 ) LEARNED counsel for the appellants has not challenged the findings recorded by the learned trial Court but has confined his argument to the question of award of sentence and refusal to grant the benefit under Sec. 6 of Probation of Offenders Act,1958. According to the learned counsel, the appellants are young boys and on the date of incident and even on the date of the judgment they were below 21 years of age, therefore, the trial Court was obliged to extend the benefit of the provisions of the Probation of Offenders Act. ( 3 ) SHRI Dhande, learned counsel for the State submits that as the learned Court below has given proper reasons for not extending the benefit of the provisions of the Porbation of Offenders Act, there is no scope for any interference. 3a. I have heard the learned counsel for the parties and have perused the records. ( 4 ) SECTION 6 of the Act provides that "when any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment but not with imprisonment for life, the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Sec. 3 or Sec. 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. "sub-SECTION 6 further provides that for the purpose of satisfying itself whether it would not be desirable to deal under Sec. 3 or Sec. 4 with an offender referred to in sub-sec. "sub-SECTION 6 further provides that for the purpose of satisfying itself whether it would not be desirable to deal under Sec. 3 or Sec. 4 with an offender referred to in sub-sec. (1), the Court shall call for a report from the probation officer and consider the report, if any, and other information available to it relating to the character and physical and mental conditions of offender. " ( 5 ) SECTION 6 in its terms is mandatory. The Court is bound to extend the benefit of the provisions of Sec. 3 or Sec. 4 on a person who is found guilty and is below of 21 years of age. The discretion is given to the Court to not deal with the said persons either under Sec. 3 or under Sec. 4 of the Act but before passing an order of imprisonment the Court shall be duty bound to call for a report from the Probation Officer and consider the report. After taking into consideration the report of the Probation Officer, the Court would still be bound to give the reasons for not extending the benefit of Sec. 3 or Sec. 4 of the Act, to the accused. ( 6 ) UNDISPUTEDLY, Sec. 323 is not punishable with life imprisonment. The records of the Court below do not show that the learned trial Court before refusing to extend the benefit of the Act to the accused either called for the report from the Probation Officer or made any enquiry itself. In paragraph-12, the learned trial Court has observed that complainant has suffered as many as seven injuries on his person and as the said complainant belonged to a Scheduled Tribe, the benefit under the Act could not be extended. The reasons projected by the learned trial Court are not germane. When the law requires that the Court has to deal with a person either under Sec. 3 or under Sec. 4 of the Act, then the Court is bound to do so unless it has called for a report from the Probation Officer or has recorded the legal reasons for refusal. In the present case, the learned trial Court was swayed away by the number of the injuries and by the fact that the complainant belonged to the Scheduled Tribe. In the present case, the learned trial Court was swayed away by the number of the injuries and by the fact that the complainant belonged to the Scheduled Tribe. In the opinion of this Court both the facts were irrelevant because for the injuries, the appellants would be convicted under Sec. 323 and simply because a person belongs to a particular caste or tribe the benefit under the Probation of Offenders Act cannot be refused unless the man is convicted under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In the present case, the learned Court below has recorded acquittal of the appellants for the offence punishable under Sec. 3 (i) (x) of the Atrocities Act. The reasons given by the learned trial Court are patently illegal. ( 7 ) THE law requires that a Court should before refusing the benefit under the Act must record the reasons that having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with the accused either under Sec. 3 or under Sec. 4 of the Act. In the present case, the offence is punishable under Sec. 323 IPC, while there is nothing on the record against the character of each of the appellant. ( 8 ) TAKING into consideration the totality of the circumstances, I am of the opinion that each of the appellant deserves to be dealt with under the provisions of Sec. 4 of the Probation of Offenders Act. ( 9 ) THE sentences awarded to each of the appellant are set aside. Within six weeks from today, each of the appellant shall furnish a personal bond with one surety in sum of Rs. 10,000/- to the satisfaction of the trial Court for a period of one year to appear and receive sentence within the said period and in the meantime to keep the peace and be of good behaviour. ( 10 ) IT would be necessary at this point to note that the learned trial Court on one side imposed fine sentence on each of the appellant but did not exercise its powers under Sec. 357 Cr. P. C. This is high time when the Court should take into consideration that if some fine is imposed on the accused then a sufferer must be properly compensated. P. C. This is high time when the Court should take into consideration that if some fine is imposed on the accused then a sufferer must be properly compensated. If the trial Court was satisfied that benefit under the Probation Act was not required to be given to the accused then on recovery of fine amount it ought to have awarded proper compensation to the complainant. ( 11 ) SECTION 5 of the Probation Act provides that the Court while directing the release of an offender under Sec. 3 or Sec. 4 may make at the same time a further order directing the said accused to pay such compensation as the Court thinks reasonable for loss or injury caused to any person by the commission of the offence. In the present case, I am of the opinion and deem it desirable that each of the accused should pay Rs. 750/- to the complainant as compensation. If the amount of fine has already been deposited by the appellants then the compensation amount of Rs. 750/- may be appropriated and balance amount of Rs. 250/- be refunded back to each of the appellant. If the amount of fine has not been deposited then each of the appellant shall deposit the above referred compensation amount with the trial Court within four weeks from today. After the said amount is recovered from each of the appellant, the trial Court shall make the payment of the compensation amount to the complainant. ( 12 ) THE appeal to the extent indicated above is allowed. Appeal allowed. .