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2002 DIGILAW 369 (KER)

Joy v. State of Kerala

2002-06-14

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R. Hariharan Nair, J. The significant question that is to be decided in this revision is the applicability of the benefit of Sec. 4 of the Probation of Offenders Act to a convict under Sec. 51(a) of the Kerala Police Act which attracts a minimum imprisonment of 15 days. 2. The petitioner herein was convicted for the said offence by the Judicial First Class Magistrate's Court, Kuthuparamba, in STC No. 1284/92 and sentenced to undergo simple imprisonment for 15 days and fine of Rs. 100/-. The judgment to the above effect was confirmed by the court of Session, Thalassery, in Crl. A. 340/1993. 3. During arguments, the learned counsel for the petitioner submitted that the evidence adduced is inadequate to sustain a conviction and also that this is a fit case where probation should have been allowed invoking Section 360 of the Cr.P.C. 4. It is true that in support of the prosecution case that the accused was found in front of K.K. Tourist Home, Peravoor Bazaar, at 1.50 p.m. on 11.11.1992, under the influence of liquor, uttering obscene words and in a condition incapable of taking care of himself, spoken to by P.W. 3-A.S.I., corroboration is forthcoming only from the medical evidence given by P.W. 1, who was the Assistant Surgeon of the Government Hospital. PW2 who was the independent witness cited by the prosecution turned hostile and did not support the prosecution case. The two courts of fact which went into the acceptability of the evidence have chosen to accept the evidence of PW3. It cannot be stated that the said view is perverse. On the other hand, clear and cogent evidence of the medical expert is forthcoming indicating probability of the version of PW3. As such I am not inclined to disturb the finding that the accused was found drunk; incapable of taking care of himself and behaving in a disorderly manner in a public place at the time and date mentioned in the charge. 5. What remains to be considered then is only the request for extension of the benefit of probation. Eventhough Sec. 360 of the Cr.P.C. is inapplicable in this State as found in the decision in State of Kerala v. Chellappan George (1983 K.L.T. 811), this claim can be considered under sec. 5. What remains to be considered then is only the request for extension of the benefit of probation. Eventhough Sec. 360 of the Cr.P.C. is inapplicable in this State as found in the decision in State of Kerala v. Chellappan George (1983 K.L.T. 811), this claim can be considered under sec. 4 of the probation of Offenders Act, 1958, according to which :- "When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that having record 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 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 direct, and in the meantime to keep the peace and be of good behaviour. 6. The question still remains as to whether this is a fit case for extension of the said benefit. The fact that the accused was aged 40 years is certainly not sufficient to take the case out of the applicability of Sec. 4. 7. The learned counsel for the petitioner could not bring to my notice any judicial precedent where the benefit of the probation of Offenders Act was extended to a convict under the Police Act. However, certain principles appear to be well settled in the matter of extension of the benefit though they were considered in connection with certain other offences. In Mathew John v. State of Kerala (1978 KLT 154) it was found that extension of the benefit is not barred in the case of conviction under Sec. 55of the Kerala Abkari Act though the offence attracts a minimum sentence of imprisonment as well. 8. In Mathew John v. State of Kerala (1978 KLT 154) it was found that extension of the benefit is not barred in the case of conviction under Sec. 55of the Kerala Abkari Act though the offence attracts a minimum sentence of imprisonment as well. 8. During hearing, the learned counsel for the petitioner brought to my notice the decision in Commandant, 20th Battalion, ITB Police v. Sanjay Binjola ((2002) 5 SCC 317) where it is held that the benefit under Secs.3 and 4 of the Probation of Offenders Act cannot be claimed as a matter of right. The Court has to pass appropriate orders on the facts and circumstances of each case having regard to the nature of the offence, its general effect on the society and the character of the offender etc. Where the offence is of trivial nature, it may be a fit case where the benefit ca be extended. The said observation was made in a case where the accused, a constable of Indo-Tibetan Border Police was convicted for being found in overdrunk condition while he was inside the house of the Commandant of the Battalion attracting punishment under Sec. 16 (2) of the CRPF Act. The Apex Court extended the benefit of Sec. 3 of the Probation of Offenders Act to the accused therein. 9. In Kannoth Abdulla v. A.V.Menon Assistant Controller of Central Excise (1968 KLJ 724) it was held that if any Statute under which an offender is dealt with clearly indicates that the legislature intended that the provisions of the Probation of Offenders Act should not apply to the offences under the Statute, then the Act may not apply; but otherwise the provisions have to be applied subject to the conditions prescribed in the relevant section of the Probation of Offender Act. 10. In State of Kerala v. Damodaran (1974 KLT 281 ) it was held that it is the duty of the trial court, in the interest of justice, to consider the nature of the sentence to be awarded taking into consideration the nature and gravity of the offence and that the extension of the benefit under the Probation of Offenders Act has also to be considered at the said stage. 11. The object of the Probation of Offenders Act is to avoid imprisonment of the person convicted, with intent to reform him. 11. The object of the Probation of Offenders Act is to avoid imprisonment of the person convicted, with intent to reform him. Generally speaking the benefit can hence be extended to the accused in case where there is chance for his reform and the offence is not heinous enough to shock the conscience of the public and where extension of the benefit is not specifically barred by the provisions of the Act, provided, the general conditions in the Probation of Offenders Act apply. Even where the offence is committed out of thoughtlessness, inadvertence, ignorance, or sudden and uncontrolled impulse, the benefit can justly be extended. If the offence is committed on instigation by others also the benefit can safely be extended; provided, the conditions are fulfilled. 12. Desperados taking law into their own hands or injuring the person and property of the public are seldom granted the benefit. Those who commit the offences involving religious matters, anti-social offences, sex offenders etc., are not usually considered for extension of the benefit. Those who perpetrate well planned and reprehensible offences are not given the benefit. Those who commit the offences with motive of monetary gain and white collar criminals and economic offenders are also not usually given the benefit. 13. The case in hand has to be approached bearing in mind the above broad principles and also considering the fact that the Apex Court itself found it fit to extend benefit to a drunkard in the Commandant's case to which reference has already been made in para-8 above. 14. In the present case the petitioner is a first offender. He was aged 40 years as on the date on which the offence was committed. It is pointed out that during the 8 1/2 years that transpired after the commission of the offence involved in the present case, there has never been an occasion where the accused was involved in any such offence or for that matter got involved in any other crime. If the request for the benefit is considered on the above factual matrix, I am of the view that an opportunity has to be given to the petitioner to avoid the stigma of having suffered a sentence imposed by a criminal court. If the request for the benefit is considered on the above factual matrix, I am of the view that an opportunity has to be given to the petitioner to avoid the stigma of having suffered a sentence imposed by a criminal court. But this does not mean that wherever accused are convicted for offence under Sec. 51(a) or 51A of the Police Act the trial courts should invariably extend the benefit of Sec. 4 to them. All that will depend upon the facts and circumstances of each case. 15. In the circumstances, while confirming the conviction against the appellant which is well supported by medical findings, I am of the view that the sentence imposed on the accused deserves to be set aside. The case is remitted to the trial court with a direction to call for a report from the Probation Officer and to consider the question of granting the benefit of Sec. 4 to him in the light of such report. In case the court finds, after such consideration, that the petitioner is not a proper subject to the dealt with under Sec. 4 or if the accused does not co-operate in the matter of execution of necessary bonds, the court will be free to reimpose the punishment which has already been imposed on the accused. The petitioner is directed to appear before the trial court on 9-8-2002 without further notice. The Crl. R.P. is disposed of as above.