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2000 DIGILAW 48 (PNJ)

Dhanbir v. Nathan

2000-01-13

BAKHSHISH KAUR

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JUDGMENT Bakhshish Kaur, J. - Dhanbir, Pop Singh, Jagbir, Satpal, Ombir sons of Indier, were tried and convicted for the offences punisbale under Sections 323 and 325 read with Section 34 Indian Penal Code by Judicial Magistrate Ist Class, Gurgaon on September 13, 1998. Instead of sentencing them to undergo imprisonment, the trial Court released them on probation under Section 360 of the Code of Criminal Procedure. Dissatisfied with the order passed by the learned trial Court, the complainant-Nathan on whose statement the police was set in motion, preferred an appeal which was partly accepted by the learned Additional Sessions Judge, Gurgaon, who after maintaining the conviction and the order passed under Section 360 Criminal Procedure Code, ordered that the complainant and the other injured should be compensated and the accused-respondents were directed to pay Rs. 6,000/- each to the injured by way of compensation. The accused- respondents, by way of filing this Criminal Revision, have challenged the order passed by the learned Additional Sessions Judge, Gurgaon, on the grounds that the learned Additional Sessions Judge was in error in directing the accused to pay compensation to the complainant and the injured, as an appeal under Section 377(1) Criminal Procedure Code would lie directly to the High Court against the sentence passed by the trial Court on the ground of its inadequacy. 2. The backdrop of the case is that on August 25, 1991, a minor dispute arose between Nathan-complainant and his son Hat Ram on one side and the present petitioners on the other side. The accused-petitioners were blocking the way in the street by keeping sand. On account of this, the flow of the water was blocked. Popan hit a lathi blow on the left foot of the complainant-Nathan and another lathi blow on his left arm. In the meantime, Dhanbir and Satpal arrived at the scene and they also caused injuries by lathis to Nathan on the different parts of his body. When Hat Ram tried to rescue his father, then Ombir dealt lathi blows and ballam blows on his head, left elbow and the back side of the left shoulder of Hat Ram. On hearing the alarm raised by the injured, one Balwan was attracted to the spot and saved Nathan and his son from the clutches of the accused, whereafter they ran away. The injured were medically examined. On hearing the alarm raised by the injured, one Balwan was attracted to the spot and saved Nathan and his son from the clutches of the accused, whereafter they ran away. The injured were medically examined. The matter was reported to the police and dafter the completion of the investigation report under Section 173 of the Code of Criminal Procedure was presented in the Court. 3. The learned Judicial Magistrate after finding a prima facie case under Sections 323/325 read with Section 34 Indian Penal Code framed the charges against the accused. They were tried thereunder and were found guilty. The learned Magistrate convicted them under Sections 323/325 read with Section 34 Indian Penal Code, but released them on probation under Section 360 of the Code of Criminal Procedure. 4. I have heard Mr. R.K. Jain, learned counsel for the petitioner, Mr. Sultan Singh, learned A.A.G for the State and Mr. Baldev Singh, learned Advocate for respondent No. 2 5. Mr. R.K. Jain, learned counsel for the petitioner contended that trial Court has granted the benefit under Section 360 of the Code of Criminal Procedure to the petitioners by releasing them on probation. This section nowhere provides that the injured or the complainant would be compensated in terms of money. The learned Magistrate had passed the order only under Section 360 of the Code and not under the Probation of Offenders Act. Therefore, the learned Additional Sessions Judge by way of accepting the appeal preferred by the complaint, could not burden the petitioners or direct them to pay the compensation as it is not the requirement of the law envisaged under Section 360 of the Code. Clause (10) of Section 360 of the Code further makes it clear that nothing in this Section shall affect the provisions of the Probation of Offenders Act. The learned counsel has also referred to proviso to Clause (5) of the Section 10 of the Code which reads as under :- "Provided that the High Court or the Court of Sessions shall not under this Section inflict a greater punishment that might have been inflicted by the Court by which the offender was convicted." 6. Taking into consideration the submissions made by the learned counsel for the petitioner, it cannot be said that the Court of Session had inflicted greater punishment than might have been inflicted by the Court by which the offender was convicted. Taking into consideration the submissions made by the learned counsel for the petitioner, it cannot be said that the Court of Session had inflicted greater punishment than might have been inflicted by the Court by which the offender was convicted. The learned Magistrate, who had ordered the release of the petitioners on probation under Section 360 of the Code, was also competent to compensate the injured by directing the accused to compensate them in terms of money. Similarly, the argument advanced by the learned counsel for the petitioner that Clause (10) to Section 360 creates a bar in allowing compensation, is also devoid of merit. For facility of reference, Clause (10) of Section 360 is reproduced as under :- "Nothing in this Section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders." 7. The emphasis would be on the later part of his clause i.e. for the treatment, training or rehabilitation of youthful offenders, meaning thereby that nothing in this Section shall affect the provisions of Probation of Offenders Act, or, any other law for the time being in force, for the treatment, training or rehabilitation of youthful offenders. Neither of the Courts below has passed any order contrary to the provisions envisaged under this Section, which affects the provisions of the Probation of Offenders Act or the Children Act for the treatment, training or rehabilitation of youthful offenders. 8. The learned Additional Sessions Judge has correctly observed that the Judicial Magistrate has ignored the field of victimology in not granting any compensation to the victims of the crime while releasing the accused on probation though it is forgiveness for the elder and mischief for the youngster, as in the common adage. Compensatory jurisprudence was, therefore, required to be considered. 9. Thus, considering the case from every possible angle, a balance has been maintained by the Court below by releasing the accused-petitioners on probation on one side and on the other side compensating the victims. The case also relates to the year 1991 and since then, the parties have been litigating. They have been undergoing the trauma of protracted trial. 9. Thus, considering the case from every possible angle, a balance has been maintained by the Court below by releasing the accused-petitioners on probation on one side and on the other side compensating the victims. The case also relates to the year 1991 and since then, the parties have been litigating. They have been undergoing the trauma of protracted trial. Thus, assuming that appeal could not lie under Section 377(1) of the Code of Criminal Procedure before the Sessions Court by the complainant against the order passed by the Judicial Magistrate, no useful purpose would be served by remitting the case to the Courts below to consider the case afresh on the point of maintainability of the appeal or the revision before the Sessions Court. 10. For the reasons state above, I find no ground to interfere with the order passed by the learned Additional Sessions Judge. This petition is, therefore, dismissed. Petition dismissed.