Research › Search › Judgment

Rajasthan High Court · body

2007 DIGILAW 1985 (RAJ)

Subhash Singh v. State of Rajasthan

2007-10-11

GOPAL KRISHAN VYAS

body2007
JUDGMENT 1. - This revision petition has been filed by the petitioner challenging the judgment passed by the Judi. Magistrate (First Class), Sadulshahar (hereinafter, "the trial Court") in Criminal Regular Case No. 20/1999 dated 05.07.1999 whereby the learned trial Court convicted the petitioner for offences under Sections 457 and 380, I.P.C. and sentenced him to undergo rigorous imprisonment for one year and pay a fine of Rs. 500/- for each offence; and, in default of payment of fine, to further undergo three months' simple imprisonment each. The said judgment of conviction and sentence was appealed against before the learned Sessions Judge, Sriganganagar by the petitioner after limitation and, therefore, he preferred application under Section 5, Limitation Act alongwith the appeal filed before the Sessions Court. By order/judgment dated 08.08.2007 the learned Sessions Judge, Sriganganagar rejected the application filed under Section 5, Limitation Act while dismissing the appeal on the ground of limitation. In the present revision petition, the petitioner has challenged both the aforesaid judgments. 2. It is submitted by learned counsel for the petitioner that in this case though the petitioner was convicted by the trial Court on 05.07.1999 but, thereafter, his sentence was suspended by the trial Court for one month and due to ailing health, the petitioner could not prefer appeal, therefore, standing warrant of arrest was issued by the trial Court against the petitioner. 3. It is contended by the learned counsel for the petitioner that in pursuance of the order of standing warrant; the petitioner was arrested on 18.07.2007 and was sent to judicial custody; but, thereafter, the petitioner filed appeal against the judgment passed by the trial Court dated 05.07.1999. The said appeal was presented before the appellate Court on 30.07.2007 and alongwith the appeal an application for condonation of delay was also filed with an application for suspension of sentence. It is submitted that the learned appellate Court has rejected the appeal only on the ground that the appeal has been filed after eight years, therefore, there is no ground for condoning the delay. Learned counsel for the petitioner contended that the learned appellate Court refused to enter into the merit of the case and dismissed the appeal while rejecting the petitioner's application moved under Section 5, Limitation Act. 4. Learned counsel for the petitioner contended that the learned appellate Court refused to enter into the merit of the case and dismissed the appeal while rejecting the petitioner's application moved under Section 5, Limitation Act. 4. It is contended by learned counsel for the petitioner that the petitioner was suffering from jaundice and remained confined to bed for considerable time. It is submitted that as a result of the ailment the petitioner lost his memory, therefore, the learned appellate Court committed error in not appreciating the facts and circumstances of the case in proper perspective while rejecting the application for condonation of delay. Learned counsel for the petitioner further contended that the charge levelled against the petitioner is with regard to allegedly committing theft of 4 water bottles, 1 bucket, a quilt, rugs, pillows and some other house-hold articles and none of them is costly item. It is vehemently contended that though the prosecution did not prove the case beyond reasonable doubt but the petitioner has been convicted of the offences, charge and sentenced to suffer imprisonment. 5. At the juncture, learned counsel for the petitioner, in the alternative, prays that before this Court he does not want to press the challenge to the validity of the conviction of the petitioner for offences under Sections 457 and 380, I.P.C. while advancing the submission for the consideration of this Court that the petitioner is only 26 years old and, at the time of the impugned judgment, he was 19 years old. It is submitted that the petitioner is behind bars since 18.07.2007 which is already more than two and a half months and he had also remained in custody for some time while the trial was going on. Therefore, looking to the facts and circumstances of the case in its totality, a prayer is made that the sentence of the petitioner may be reduced to the period of imprisonment already undergone by him. Learned counsel for the petitioner has advanced arguments in support of this submission that there is no allegation of theft of valuable articles nor there has been any other case registered against the petitioner either before or after the present case, therefore, in the facts and circumstances of the case, having regard to the age of the petitioner, the learned trial Court ought to have granted benefit of probation to the petitioner under Section 360, Cr.PC. as well as provisions of the Probation of Offenders Act. 6. The learned Public Prosecutor, on behalf of the State, opposed the prayer of the petitioner and argued that the petitioner's prayer for mercy is not based on reasonable ground because for eight long years the petitioner did not take any steps for filing the appeal and he did not appear before the Court. 7. I have considered the rival submissions. 8. Truly, the appeal was filed by the petitioner on 30.07.2007, after his arrest in pursuance of the warrant of arrest issued by the trial Court. Thus the 5 appeal was filed after exorbitant delay. In the facts and circumstances of the case, however, for the purpose of condonation of delay in a criminal case, in my considered opinion, the lower appellate Court should have shown indulgence so as not to deny itself consideration of the merit of the case and proceed to decide the matter after discussing the entire evidence. Normally, in criminal cases appeals should not be dismissed merely on the ground of limitation. However, the proposition for a lenient approach is always founded upon reasonableness and legitimacy and does not set down a rule either of precedence or law. Therefore, in the fitness of things, the Court must itself adopt an attitude for the inclination to decide each and every case on the 5 merit and try as far as possible not to brush aside matters on mere technical grounds. 9. In view of the aforesaid, having consideration to the submission advanced by learned counsel for the petitioner, without commenting upon the order impugned dated 08.08.2007 passed by the appellate Court, it is just D and proper to dispose of the revision petition on merit on the ground that the day on which the petitioner was arrested in this case he was less than 19 years of age and, on the date of judgment of the trial Court i.e., 05.07.1999, he was 19 years old; meaning thereby, the petitioner attained majority just before the alleged incident. At the stage, having regard to the facts and 5 circumstances of the case, the petitioner ought to have been given the benefit of probation. However, the learned trial Court refused to grant the benefit of probation to the petitioner without assigning proper ground. At the stage, having regard to the facts and 5 circumstances of the case, the petitioner ought to have been given the benefit of probation. However, the learned trial Court refused to grant the benefit of probation to the petitioner without assigning proper ground. Now, the petitioner has been behind bars since 18.07.2007 and earlier also he remained in custody during the trial for some time. 10. Therefore, while maintaining the conviction of the petitioner for offences under Sections 457 and 380, I.P.C. vide judgment dated 05.07.1999 passed by the trial Court which stood affirmed by the learned Sessions Judge, Sriganganagar vide judgment dated 08.08.2007, the sentence of imprisonment awarded to the petitioner by the trial Court for each count is 5 reduced to the period of imprisonment already undergone by the petitioner. Accordingly, the revision petition stands partly allowed with aforesaid modification of the impugned judgment dated 05.07.1999 passed by learned Judi. Magistrate (First Class), Sadulshahar in Criminal Regular Case No. 20/1999.Revision partly allowed by modifying impugned judgment. *******