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2008 DIGILAW 1648 (RAJ)

Radheyshyam v. State of Rajasthan

2008-07-09

MAHESH CHANDRA SHARMA

body2008
JUDGMENT 1. - This is an appeal filed by the accused appellant against the judgment and order dated 4.1.1986 passed by the Addl. Sessions Judge, (Camp Court Dausa) in Sessions Case No. 15/1985, by which he held guilty of the offence under section 322, IPC, but released on probation under section 4 of the Probation of Offenders Act and also imposed compensation of Rs. 1,000/- under section 5 of the Probation of Offenders Act. It was also ordered to pay half of the amount of compensation to the complainant.The brief facts of the case are that the appellant was First Grade Compounder of the Ayurved Vibhag and has completed 31 years service. In the month of January, 1985 he was posted as Compounder in the Government Ayurved Dispensary at Village Didwana Tehsil Lalsot and Sh. Ramraj' was the Vaidya Incharge of the Dispensary. On 11.1.1985, the appellant fell ill and submitted an application for the leave and got the leave extended by an another application 18.1.1985 sent under certificate of posting. On 21.1.1985 Vaidhya Sh. Ramraj issued notice to the appellant that the appellant was absent from duties since 11.1.1975 without any leave application. On 22.1.1985 the appellant explained Shri Ramraj that he was on leave only from 1.1.1985 on account of illness and has submitted the leave applications. The appellant also requested that the notice given to him treating him absent from duties from January 1975 is wrong and should be withdrawn. The accused appellant was remained absent from duties and came in the office of the P.W. 3 Ramraj and started beating to him, he received injury and thereafter he run away. Upon the said incident, the police registered a case FIR No. 13/85 (Ex. P.3). 2. Upon the aforesaid incident, the police registered a case for the offence under section 332 & 333, IPC and investigation started. After investigation, the police filed a challan under section 333 and 332, IPC be- fore the Court of Addl. Chief Judicial Magistrate, Dausa who committed the case to the Court of Addl. Sessions Judge, Dausa who framed charges against accused person for the offence under section 333 and 332, IPC and the charges were read over and explained to the accused respondents who denied all the allegations and claimed for trial. 3. Chief Judicial Magistrate, Dausa who committed the case to the Court of Addl. Sessions Judge, Dausa who framed charges against accused person for the offence under section 333 and 332, IPC and the charges were read over and explained to the accused respondents who denied all the allegations and claimed for trial. 3. During trial, the prosecution in support of its case examined as many as 5 witnesses and got exhibit some documents. Thereafter, the statements of accused appellant were also recorded under section 313, Cr. P.C. 4. After hearing both the parties, the learned Trial Court through its judgment and order dated 4.1.1986, convicted the accused appellant for the offence under section 332, I.P.C. and acquitted them from the offence under section 333, IPC. But the learned Thal Court released the appellant by giving benefit of section 4 of the Probation of Offenders Act, 1954 and sentenced him for two years to keep peace and good behavior on his furnishing surety in the sum of Rs. 2,000/- and also imposed compensation of Rs. 1,000/- under section 5 of the Act. It was also ordered by the Trial Court that out of the amount of compensation deposited, Rs. 500/- be given to Vaid Ramraz. 5. Aggrieved against the judgment and order of acquittal the learned Trial Court dated 4.1.1985, the appellant Radheyshyam has preferred the present appeal with the prayer to quash the same. 6. In this appeal it has been submitted by Mr. P.D. Singh on behalf of Mr. G. Bardar, learned Counsel for the appellant has contended that according to the first information report and the statements of the complainant the appellant is said to have slapped the complainant in the presence of Shri Badrilal, P.W. 4 who denied this fact, hence the entire case of the prosecution comes to an end. Badrilal P.W. 4 has also not sup- ported the prosecution story who has been declared hostile. He has further contended that no independent witness has been produced by prosecution. He further, contended that there are material contradictions in the statements of prosecution witnesses. According to him, the eye-witnesses namely P.W. 4 Badrilal and P.W. 5 Mahesh Kumar who have been declared hostile. He further contended that there are major contradictions in the statements of prosecution witnesses. 7. He further, contended that there are material contradictions in the statements of prosecution witnesses. According to him, the eye-witnesses namely P.W. 4 Badrilal and P.W. 5 Mahesh Kumar who have been declared hostile. He further contended that there are major contradictions in the statements of prosecution witnesses. 7. Lastly he urged to this Court that the judgment of the Trial Court dated 4.1.1986 be quashed an set-aside and the accused appellant be acquitted from the charge framed against him under section 332, IPC. 8. Mr. B.N.Sandhu, learned Public Prosecutor has contended that the Trial Court has rightly appreciated the evidence of prosecution witnesses and rightly convicted the accused appellant under section 332, IPC and thereafter the accused appellant was released on probation. He further contended that PW-I Dr. Bal Mukund Sharma who has con- firmed the injuries received by Ram Ratan during the course of medical examination. The Court attention was also drawn upon section 12 of the Probation of Offenders Act, 1958. The said section reads as under : "Removal of disqualification attaching to conviction. Notwithstanding an thing contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 of section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law; Provided that nothing in this section shall apply to a person who, after his release under section 4 is subsequently sentenced for the original offence." 9. He further drawn attention of the Court in a decision of Supreme Court in case The Divisional Personnel Officer Southern Railway and another v. Challapan, AIR 1975 SC 2216 which reads as under : (C) Probation of Offenders Act (1958). Section 12-Does not con- template automatic disqualification of a person released on probation. "12. Another point which is closely connected with this question is as to the effect of section 12 of the Act which runs thus : "Notwithstanding any thing contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification. If any, attaching to a conviction of an offence under such law". It was suggested that section 12 of the Act completely obliterates the effect of any conviction and wipes out the disqualification attached to a conviction of an offence under such law. If any, attaching to a conviction of an offence under such law". It was suggested that section 12 of the Act completely obliterates the effect of any conviction and wipes out the disqualification attached to a conviction of an offence under such law. This argument, in of it opinion, is based on a gross misreading of the provisions of section 12 of the Act. The words "attaching to a conviction of an offence under such law" refer to two contingencies (i) that there must be disqualification resulting from a conviction; and (ii) that such disqualification must be provided by some law other than the Probation of Offenders Act. The Penal Code does not contain any such disqualification. Therefore, it cannot be said that section 12 of the Act contemplates an automatic disqualification attaching to a conviction and obliteration of the criminal misconduct of the accused. It is also manifest that disqualification is essentially different in its connotation from the word 'misconduct'. Disqualification cannot be an automatic consequence of misconduct, unless the statute so requires. Proof of misconduct may or may not lead to disqualification, because this matter rests on the facts and circumstances of a particular case or the language in which the particular statute is covered. In the instant case neither Art. 311 (2) proviso (a) nor R. 14 (i) of the Rules of 1968 contain any express provision that the moment a person is found guilty of a misconduct on a criminal charge he will have to be automatically dismissed from service. Article 311 (2) proviso (a)is an enabling provision which merely dispenses with the various stages of the departmental inquiry and the show cause notice. Rule 14 despite incorporating the principle of proviso (a) to Article 311 (2) enjoins on the disciplinary authority to consider the circumstances of the case before passing any order. Thus, in our opinion, it is a fallacy to presume that the conviction of a delinquent employee simpliciter without any thing more will result in his automatic dismissal or removal from service.13. It was, however, suggested that Rule 14 (i) of the Rules of 1968 is the provision which contains the disqualification by dispensing with the departmental inquiries contemplated under Rules 9 to 13 of the said Rules. This cannot be the position, because as we have already said Rule 14 (i) only incorporates the principle of proviso (a) to Article 311 (2). This cannot be the position, because as we have already said Rule 14 (i) only incorporates the principle of proviso (a) to Article 311 (2). If section 12 of the Probation of Offenders Act completely wipe out the disqualification contained in Article 311 (2) proviso (a) then it would have become ultra vires as it would have come into direct conflict with the provisions of the proviso (a) to Article 311 (2). In our opinion, however, section 12 of the Act refers to only such disqualifications as are expressly mentioned in other statutes regarding holding of offices or standing for elections and so on. This matter was considered by a number of High Courts and there is a consensus of judicial opinion on this point that section 12 of the Act is not an automatic disqualification attached to the conviction itself'. 10. In view of the above, it is clear that section 3 or 4 of the Probation of Offenders Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. Hence, releasing of the accused appellant under section 4 of the Probation of Offenders Act, 1958 does not affect the services of the appellant in any manner. 11. I have heard learned Counsel for the appellant as well as the learned Public Prosecutor and also gone through the record of the case. 12. Having gone through impugned judgment and order dated 4.1.1985, passed by the learned Addl. Sessions Judge, Dausa, I find the learned Trial Court has given cogent reasons for convicting the accused appellant under section 332, IPC and releasing him by giving the benefit of section 4 of the Probation of Offenders Act, which do not calls for interference by this Court. In my considered opinion, the reasoning given by the learned 'trial Court cannot be said to be erroneous one. 13. In view of the above, this appeal filed by the appellant Radheyshyam fails and the same is hereby dismissed by confirming the judgment and order dated 4.1.1986 passed by the learned Addl. Sessions Judge, Dausa. *******