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2003 DIGILAW 15 (RAJ)

Ujagar Singh v. State of Rajasthan

2003-01-03

H.R.PANWAR

body2003
JUDGMENT 1. - This criminal appeal under section 374 Cr.RC. is directed against the judgment dated 19.5.1987 passed by Additional Sessions Judge No. 1, Hanumangarh (hereinafter referred to as 'the trial court), whereby the trial court convicted the appellant for the offence under section 25(a) of The Arms Act, 1959 and sentenced him to undergo simple imprisonment for six months and a fine of Rs. 100/. In default of payment of fine to further undergo simple imprisonment for a period of 15 days. Being aggrieved by the impugned judgment of conviction and sentence, the appellant has preferred this appeal before this Court. 2. I have heard learned counsel for the appellant as well as the learned Public Prosecutor for the State. 3. On first information report Ex.P/6 lodged by PW. 2 Baldev Singh with Police Station, Tibi, District Sriganganagar, police proceeded with the investigation and after investigation, filed the charge-sheet against the appellant and six others for the offence under sections 307, 366, 147, 148 and 149 I.RC. and under section 27-25 (1-B)(a) of The Arms Act, 1959 (for short the Act'). 4. On appreciation of the evidence produced by the prosecution, the trial court came to the conclusion that the prosecution has failed to prove the case against the accused for the offence noticed above except appellant Ujagar Singh, who was found guilty of offence under section 25(a) of the Act and was sentenced as mentioned above. 5. I have carefully gone through the judgment impugned as well as the record of the trial court. 6. Oh 6.1.1986, the appellant was found in possession of one 315 bore gun, which was recovered vide Ex.P/11. The appellant did not have any licence to posses the said gun. After usual investigation and procuring the prosecution sanction from the District Collector, Sriganganagar, police filed challan/charge-sheet against the appellant for the offence under sections 25 and 27 of the Act. On trial offence under section 27 of the Act was not found to be proved. However, the trial court found the appellant guilty for the offence under section 25(a) of the Act and sentenced him in the manner indicated above. 7. Learned counsel for the appellant has not challenged the conviction of the appellant. However, the learned counsel for the appellant contended that the occurrence took place on 14.7.1985 and more than 17 years have already elapsed. 7. Learned counsel for the appellant has not challenged the conviction of the appellant. However, the learned counsel for the appellant contended that the occurrence took place on 14.7.1985 and more than 17 years have already elapsed. During the trial, appellant was arrested on 1.1.1986 and was released on bail on 22.1.1986. As such, during the trial, he was under detention being in judicial custody for a period of 22 days. It was further contended that the trial court erred in not extending the benefit of section 360 Cr.RC. as well as the Probation of Offenders Act, 1959 (hereinafter referred to as the Act, 1959). 8. Learned Public Prosecutor vehemently opposed the contention raised by the learned counsel for the appellant and contended that the prosecution has succeeded in establishing the offence under section 25(a) of the Act against the appellant and, therefore, he contended that the appellant should not be released on probation. I have given my thoughtful consideration to the rival submissions raised at bar. From the record, it establishes that the appellant was under detention for a period of 22 days as noticed above during the trial court of case. More than 17 years have already elapsed form the date of commission of the offence. To put him back in jail after the appellant led the peaceful life of an ordinary citizen for a period of over 17 years would not be proper. The trial court has not assigned any reason much less special reason for not extending the benefit of section 360 Cr.RC. by releasing the appellant on probation. The provisions of section 361 Cr.RC. are mandatory. 9. The Arms Act does not exclude the application of the provisions of section 360 Cr.RC. as well as the provisions of the Act. 10. In Jugta Ram v. State of Rajasthan, 1981 Raj. Cr. Cases page 01 , this Court has held that unless any Act excludes the applicability of section 360 Cr.RC. or the provisions of Probation of Offenders Act, the mere fact that a minimum sentence has been prescribed for any offence cannot be sufficient to refuse benefit of probation. However, extending of benefit of probation depends on the facts of each case as to whether such benefit should be extended to the accused or not for which section 361 Cr.RC. provides when court has not dealt the accused under section 360 Cr.RC. However, extending of benefit of probation depends on the facts of each case as to whether such benefit should be extended to the accused or not for which section 361 Cr.RC. provides when court has not dealt the accused under section 360 Cr.RC. then special reasons to be recorded in the judgment. 11. In Bishnu Deo Shaw v. State of West Bengal, (1979) 3 SCC 714 , the Hon'ble Court while considering the expression 'special reasons has held as under: "reasons which are special with reference to the offender, with reference to constitutional and legislative directives and with reference to the times, that is, with reference to contemporary ideas in the fields of criminology and connected sciences. Special reasons are those which lead inevitably to the conclusion that the offender is beyond redemption, having due regard to his personality and proclivity, to the legislative policy of reformation of the offender and to the advances made in the methods of treatment etc." 12. In the instant case, obviously, no reasons much less special reason has been recorded by the trial court for not extending the benefit of section 360 Cr.RC. or the provisions of the Act. 13. In Ram Pratap v. The State of Raj., 1989 Cr.L.R. (Raj.) 139 , the accused was found guilty and convicted for the offence under section 25(1)(a) of the Act and was sentenced to 6 months rigorous imprisonment and with a fine of Rs. 300/-. The Court considering the circumstances of the case extended the benefit of probation. 14. In Mishri Lal v. State, 1989 RCC 169 , the accused was found guilty and convicted for the offence under section 25 of the Arms Act and was sentenced to 6 months rigorous imprisonment and a fine of Rs. 100/-. The accused was extended benefit of section 360 Cr.p.C. and was granted probation. 15. In Pida Singh v. State of Rajasthan, 1992 Cr.L.R. 329 , the accused was found guilty and convicted for the offence under section 25(1)(a) of the Act. The Court considering the fact that there was nothing on record to show that the petitioner was a previous convict or that his conduct was not good considering his first offence, the benefit of section 360 Cr.RC. was granted and he was released on probation on his furnishing a personal bond. The Court considering the fact that there was nothing on record to show that the petitioner was a previous convict or that his conduct was not good considering his first offence, the benefit of section 360 Cr.RC. was granted and he was released on probation on his furnishing a personal bond. In the instant case, there is nothing on record to show that the appellant was previously convicted or that his conduct has been bad or questionable. The incident took place on 14.7.1985 and since then, the appellant has undergone sufficient mental agony and incurred financial strain during the trial and also during this appeal. He has already been under detention for a period of 22 days. Keeping in view the age, character and antecedents of the appellant as also the nature of offence committed by him, I am of the considered opinion that it is a fit case wherein the appellant should be extended benefit of section 360 Cr.RC. and be released on probation for maintaining the good conduct. 16. For the reasons stated, the appeal filed by appellant Ujagar Singh against his conviction is dismissed and his conviction for offence under section 25(a) of the Act recorded by the trial court on 19.5.1987 is maintained. However, on the point of sentence, the appeal is partly allowed and it is directed that instead of sentencing the appellant at once to undergo for the remaining period sentenced by the trial court, he be released on probation for good conduct on his entering into personal bond in the sum of Rs. 10,000/-with a sound and solvent surety in the like amount to the satisfaction of the learned trial court to appear and receive the sentence when called upon during the period of two years from the date of filing of personal bond and surety bond and in the meantime to keep peace and good conduct, the appellant shall also give an undertaking that during the period of 2 years, he shall not commit any offence punishable under the Act. The seized 315 bore gun stands confiscated to the State.Appeal partly allowed. *******