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2012 DIGILAW 1729 (PNJ)

Vir Bhan v. State of Haryana

2012-12-04

RAM CHAND GUPTA

body2012
JUDGMENT Mr. Ram Chand Gupta, J.(Oral) - The present revision petition has been filed against the judgment dated 29.09.2012 passed by learned Additional Sessions Judge, Kurukshetra vide which appeal filed by the present petitioner was partly accepted and the petitioner was convicted for the offence under Section 419 read with Section 511 of Indian Penal Code (in short ‘IPC’) and sentenced to undergo simple imprisonment for fifteen months. 2. I have heard learned counsel for the parties and have gone through the whole record. 3. Briefly stated, case of the prosecution is that petitioner-convict Vir Bhan appeared in the Court claiming himself to be Vijay Kumar son of Jagdish, resident of Gurmal (Madhya Pradesh) and he also entered the witness box and gave his aforesaid name and address and however, it was pointed out by learned counsel for the complainant that he was not Vijay Kumar son of Jagdish. This fact was also confirmed by learned Public Prosecutor and hence, he tried to impersonate as Vijay Kumar son of Jagdish and tried to cheat the Court. However, his statement was not recorded as his identity was disputed by the prosecution. 4. After completion of investigation, report under Section 173 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) was filed against him. He was charged for the offences under Sections 419/420 IPC by learned trial Court and convicted for the said offence and sentenced to undergo simple imprisonment for three years. However, in the appeal being filed by the present petitioner, learned Additional Sessions Judge, Kurukshetra convicted him for the offence under Section 419 read with Section 511 of IPC and sentenced him to undergo simple imprisonment for fifteen months. 5. It has been contended by learned counsel for the petitioner-convict that he does not want to contest the present petition so far as the judgment of conviction as modified by learned first Appellate Court is concerned. 6. So far as the quantum of sentence is concerned, it has been contended by learned counsel for the petitioner-convict that he is not a previous convict and that offence is punishable with maximum imprisonment of eighteen months and hence, he should have been given benefit under the Probation of Offenders Act, 1958 or under Section 360 of Cr.P.C. However, the said benefit has been denied to him without giving special reasons as provided under Section 361 Cr.P.C. 7. These facts have not been disputed by learned counsel for the respondent-State. 8. 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 isconvicted 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.” 9. As already discussed above, the offence under Section 419 read with Section 511 of IPC is punishable with maximum imprisonment of eighteen months. Petitioner is not a previous convict. Hence, learned Courts below should have released him on probation. However, the said benefit has been denied to him without giving any special reasons as provided under Section 361 Cr.P.C. Moreover, he has already undergone more than three months of the sentence awarded. 10. Hence, in view of these facts, the present petition is partly accepted. The judgment of conviction as passed by learned trial Court and as modified by learned first Appellate Court is hereby affirmed. However, the order of sentence is modified to the extent that petitioner is ordered to be released on probation of good conduct on his furnishing probation bond for a period of one year to the satisfaction of learned trial Court at Kurukshetra. However, the order of sentence is modified to the extent that petitioner is ordered to be released on probation of good conduct on his furnishing probation bond for a period of one year to the satisfaction of learned trial Court at Kurukshetra. During this period, he will keep peace and be of good behaviour and be called upon to receive sentence in case of violation of any condition of the bond. The amount of fine already deposited by him shall be treated as cost of proceedings. Disposed of accordingly. ---------0.B.S.0------------