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2006 DIGILAW 737 (GUJ)

STATE OF GUJARAT v. BHIKHU ABDUL BALOCH

2006-11-16

C.K.BUCH

body2006
C. K. BUCH, J. ( 1 ) THE present Criminal Appeal has been preferred by the appellant State against the judgment dated 06. 01. 1996 passed by the id. JMFC, Kodinar in Criminal Case No. 555/1991, convicting the present appellant-original accused No. 1 as well as original accused No. 2 for the offences punishable under section 25 (1)A of the Arms Act and under section 135 of the Bombay Police Act and section 114 of the Indian Penal Code and instead of awarding sentence to the accused persons, the accused were granted benefit of the provisions of section 4 of the probation of Offenders Act and placed them under the observations of Probation Officer for a period of Two Years and they were ordered to be released on bail on each of them furnishing a surety of Rs. 5,000/ and a bond for Good Conduct of the like amount. ( 2 ) HEARD Id. APP Mr. Desai for the appellant State and Id. Counsel Mr. MG pandya appearing for the respondent accused (original accused No. l ). It is submitted by id. APP Mr. Desai that the Id. Trial Judge has committed material error in granting probation to the accused persons when they were found guilty of the offence punishable under the Arms Act. The offence in question for which the accused were tried, is grave in nature and is an offence against the society and the Court should go slow in exercising the discretionary jurisdiction vested in it under the provisions of the probation Of Offenders Act and/or of section 360, 361 of Crpc. ( 3 ) IN response to this submission, mr. Pandya has pointed out that the trial court had granted similar benefit to the accused of one Criminal Case No. 552/1991 and that order was also assailed by the State by filing Criminal Appeal No. 259/1996 before this Court. This Court, while dealing with the said criminal appeal, while disposing of the same vide oral judgment/order dated 12. 09. 1996 (Coram: M. R. Calla,j), has observed that there is no patent illegality in granting the benefit of the provisions of the probation Of Offenders Act to the convict accused person. It is submitted that the facts of the said criminal appeal are substantially similar to the facts of the present case. ( 4 ) MR. 09. 1996 (Coram: M. R. Calla,j), has observed that there is no patent illegality in granting the benefit of the provisions of the probation Of Offenders Act to the convict accused person. It is submitted that the facts of the said criminal appeal are substantially similar to the facts of the present case. ( 4 ) MR. Pandya has pointed out one decision of the Rajasthan High Court in the case of JASHWANT SINGH V/s. STATE OF rajasthan, 1995 (3) CRIMES 773, wherein, in para-6 of the said decision, it has been observed thus: "6. I have given my thoughtful consideration to the rival contentions. The arms Act, 1950 does -not exclude the application of provisions of Sec. 360, cr. P. C. ,as well as those of provisions under probation of Offenders Act, 1959. In Jugta ram v. State of Rajasthan, it has been held that unless any Act excludes the applicability of Sec. 360, Crpc, or the provisions of probation of Offenders Act, the mere fact that a minimum sentence has been prescribed for any offence, is not sufficient to refuse beneficiary probation. It was further observed that is application, however, depends on the facts of each case as to whether such benefit should be extended to the accused or not. This is trite law that mere prescribing of minimum sentence for a particular offence does not create any bar for extending the benefit of probation, either under sec. 360, cr. P. C. or under the Probation of Offenders act in a particular case. A similar view has been taken in Pidar Singh V/s. State of rajasthan. " ( 5 ) THE accused have been held guilty for the offence punishable under section 114 of the IPC and it is held that notification published by the authority prohibiting the possession of the arm that was found from one of the accused was in operation and it was duly published by the authority of the concerned district. It would be difficult for this Court to say that the offence which has been found proved is of a very grave nature even if the actual type of the weapon allegedly seized from one of the accused person. It would be difficult for this Court to say that the offence which has been found proved is of a very grave nature even if the actual type of the weapon allegedly seized from one of the accused person. While considering this type of issue, the Court should consider the quantum of punishment prescribed under the Statue, nature of weapon allegedly recovered from the accused and whether this was found relevant in connecting the accused with the crime. In my view, the facts before the trial court were adequate and sufficient for the trial Court to grant the benefit of probation as the accused were otherwise entitled to the said benefit in view of the ratio propounded in the decision in the case of jashwant Singh (supra ). ( 6 ) IN the result, there is no merits in the present Criminal Appeal and the same is hereby dismissed. The impugned judgment dated 06. 01. 1996 passed by the Id. JMFC, kodinar in Criminal Case No. 555/1991 is hereby confirmed.