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2012 DIGILAW 1375 (PNJ)

Gopal Singh v. State of Punjab

2012-10-04

RAM CHAND GUPTA

body2012
JUDGMENT Mr. Ram Chand Gupta, J.: (Oral) - Both the afore-mentioned revision petitions have been filed against the judgment dated 4.6.2012 passed by learned Sessions Judge, Sri Muktsar Sahib dismissing the appeals filed by the present petitioners against the judgment of conviction and order of sentence both dated 11.03.2010 passed by learned Judicial Magistrate 1st Class, Malout convicting the petitioners for the offence punishable under Section 223 of Indian Penal Code (for short ‘IPC’) and sentencing them to undergo rigorous imprisonment for one year each and to pay a fine of Rs.500 each and in default of payment of fine, to further undergo rigorous imprisonment for one month. 2. Brief allegations are that on 08.07.2002 the police party headed by ASI Surinderpal, Incharge, Police Post Kabarwala alongwith Head Constable Balkaran Singh and other police officials was present at Bus Stand of village Pakki Tibbi. Petitioner-accused Gopal Singh Constable made a statement before the ASI that he was deployed as Police Constable in Police Lines, Ferozepur. On 07.07.2002 he along with petitioner-accused Des Raj and Constable Chanan Singh were deputed to produce under-trial Partap Singh on 08.07.2002 in case FIR No.93 dated 11.06.1999 under Sections 307, 506, 148 read with Section 149 of IPC and on 09.07.2002 in case FIR No.147 dated 29.09.1999 under Section 307 IPC, Police Station Sadar Abohar in the Court of learned Additional Sessions Judge, Ferozepur from Central Jail, Ludhiana and that they received the custody of said under-trial from Central Jail, Ludhiana and produced him before learned Additional Sessions Judge, Ferozepur and thereafter, he was to be detained in Police Station Sadar Ferozepur on transit remand. However, on the request of under-trial that he wanted to take some medicines, he was taken by them to his village Pakki Tibbi and after reaching his village, he escaped from their custody. 3. It has been contended by learned counsel for the petitioners-accused that they do not want to press both the afore-mentioned revision petitions so far as the judgment of conviction passed by learned trial Court and as affirmed by learned first Appellate Court is concerned. However, it has been stated that they want to press both the afore-mentioned revision petitions only on the question of sentence. However, it has been stated that they want to press both the afore-mentioned revision petitions only on the question of sentence. It is further contended that there was no criminal intention on the part of petitioners-accused and they have been convicted by learned Courts below as they were found negligent in performance of their duties. It is further submitted that for that lapse, they have already been punished as they have been removed from their jobs by the department. It is further contended that they are first offenders and the offence is punishable with maximum two years’ simple imprisonment or with fine or with both. It is further contended that they have already undergone four months of the sentence awarded. It is further contended that they are entitled to be released on probation as required under Section 360 of the Code of Criminal Procedure (for short ‘Cr.P.C.) and however, no reasons whatsoever have been given by learned Courts below refusing the benefit of probation to the petitioners. 4. It is pertinent to reproduce Sections 360 and 361 of Cr.P.C., which reads as under:- “360. Order to release on probation of good conduct or after admonition. 4. It is pertinent to reproduce Sections 360 and 361 of Cr.P.C., which reads as under:- “360. Order to release on probation of good conduct or after admonition. (1) When any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty- one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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: Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub- section (2). (2) Where proceedings are submitted to a Magistrate of the first class as provided by sub- section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken. (3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860 ), punishable with not more than two years’ imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. (4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub- section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted. (6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section. (7) The Court, before directing the release of an offender under sub- section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence. (10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders. 361. Special reasons to be recorded in certain cases.-- Where in any case the Court could have dealt with,- (a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or (b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.” 5. The offence for which the present petitioners have been convicted is punishable with maximum two years’ simple imprisonment or with fine or with both. They are not previous convicts. Hence, they could have been released on probation by learned Courts below under Section 360 of Cr.P.C. No reasons whatsoever have been given by the Courts below denying the said benefit to the present petitioners. 6. Hence, both the afore-mentioned petitions are partly accepted. Judgment of conviction passed by learned trial Court and as affirmed by learned first Appellate Court against the present petitioners-accused is hereby affirmed. 7. However, the order of sentence is modified to the extent that petitioners are ordered to be released on probation of good conduct on their furnishing probation bonds for a period of one year to the satisfaction of learned trial Court at Malout. 7. However, the order of sentence is modified to the extent that petitioners are ordered to be released on probation of good conduct on their furnishing probation bonds for a period of one year to the satisfaction of learned trial Court at Malout. During this period, they will keep peace and be of good behaviour and be called upon to receive sentence in case of violation of any condition of the bonds. 8. In addition to it, they are also directed to pay Rs.500 each as costs of proceedings. The amount of fine already paid shall be treated as costs of proceedings. 9. Disposed of accordingly.