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Madhya Pradesh High Court · body

2012 DIGILAW 7 (MP)

Balbeer Singh v. State of M. P.

2012-01-03

SUJOY PAUL

body2012
ORDER 1. This revision under section 397/401 of CrPC is directed against the judgment dated 28.12.2011. The petitioner is convicted and sentenced by order dated 19.4.2011 passed by JMFC Vidisha in Criminal Case No. 908/09 whereby he was held guilty for the offence punishable under sections 354 and 448 of IPC and was ordered to undergo RI of two months and three months respectively for the said offences, which would run concurrently. 2. Shri Amit Lahoti, learned counsel for the petitioner, apart from pointing out perversity and apparent contradictions in the statements of prosecution witnesses, also stated that both the Courts below have not addressed on the question of grant of benefit of probation to the petitioner as per sections 360 and 361 of Cr.P.C. 3. Shri Lahoti, in nutshell submits that the petitioner fulfills the eligibility for grant of said benefit of probation as per section 360 (1) of CrPC. He submits that both the provisions ought to have been taken into account by the Courts below. On this score alone, Shri Lahoti submits that the petitioner deserves to succeed. 4. I have also heard Shri B.K. Sharma, learned Public Prosecutor, on this ground. 5. Section 360 (1) CrPC shows that if a person is above 21 years of age and is punished for a term of less than seven years, his case may be considered for grant of benefit of probation. Another requirement is that there is no previous conviction against such person. 6. A careful perusal of the order of JMFC dated 19.4.2011 shows that in para 15 there is a specific finding that there is no material on record which shows that petitioner was previously convicted in any other matter and he became accused for the first time. Admittedly, the age of petitioner is above 21 years. Thus, I find force in the argument of Shri Lahoti that the petitioner was eligible for consideration by the Court for the purpose of grant of benefit of probation. 7. Sections 360 and 361 of CrPC were considered by this Court in a case reported in 1992 (1) MPJR 331 (Prakash v. State of M.P.). Relevant paragraph No. 5,6 and 7 are reporduced here as under :- 5. 7. Sections 360 and 361 of CrPC were considered by this Court in a case reported in 1992 (1) MPJR 331 (Prakash v. State of M.P.). Relevant paragraph No. 5,6 and 7 are reporduced here as under :- 5. The criminal jurisprudence dealing with imposition of sentence has undergone a change with the enactment of the Act, which is a milestone in the progress of the modem liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. See Rattanllal v. State of Punjab ( AIR 1965 SC 444 ). 6.1t is with this purpose of reformation of the offender that sections 360 and 361, CrPC have been enacted. S. 360 empowers the Court to deal leniently with a person who has committed an offence for the first time by releasing him on probation of good conduct instead of giving punishment, in order to give him a chance of reforming himself and to protect him from being corrupted and turned into a regular criminal. If the Court refrains from dealing with an offender under section 360 CrPC or under the provisions of the Act, or any other law for the treatment, training or rehabilitation of youthful offenders, where the Court could have done so, section 361, which is a new provision in the Code of Criminal Procedure, 1973, makes it mandatory for the Court to record in its judgment the 'special reasons' for not doing so. Section 361 thus casts a duty upon the Court to apply the provisions of section 360 whereever it is possible to do so and to state "special reasons" if it does not do so. In the context of section 360, the "special reasons" contemplated by section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstanmces in which the offence was committed. See Bishnu Deo v. State of West Bengal ( AIR 1979 SC 964 ). 7. See Bishnu Deo v. State of West Bengal ( AIR 1979 SC 964 ). 7. Looked with that view, in fact, no special reasons have been assigned by the appellate Court for not applying the provisions of the Act, which was mandatory for the Court to record in its judgment for not giving the benefit under section 360 CrPC compelling the Court to hold that it is impossible to reform the rehabilitate the offender. The applicant being an employee in the Municipality, a first offender deserves to be given the benefit of probation U/s. 360, CrPC as the incident was not preplanned nor the injury caused was of serious nature. Therefore, in the circumstances of the case and having regard to the nature of the offence as also the character of the offender, it is expedient to release the applicant on probation of good conduct for a period of one year from the date of execution of bond. The applicant's sentence of fine shall remain suspended during this period, provided he executes a bond of Rs. 1,000/- with one solvent surety in the like amount to the satisfaction of the Judicial Magistrate, First Class, Sabalgarh, within a period of one month from today. If the applicant fails to maintain peace and good behaviour during the period, the sentence of fine shall be received by the applicant. 8. The apex Court in (2000) 9 SCC 245 (Chandreshwar Sharma v. State of Bihar) held as under :- "From the perusal of the judgment of the learned Magistrate as well as the Court of appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of section 360 of the Code of Criminal proecedure. Section 361 and section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of section 360 and 361 of the Code of Criminal Procedure. As such, the mandatory duty cast on the Magistrate has not been performed. This has apparently not been done, inasmuch as the Court overlooked the provisions of section 360 and 361 of the Code of Criminal Procedure. As such, the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case, we see no reason not to apply the provisions of section 360 of the Code of Criminal Procedure. We accordingly, while maintaining the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly. 9. A bare perusal of aforesaid judgments make it crystal clear that the provisions of sections 360 and 361 are mandatory in nature. The Courts below are under mandatory obligation to consider the case in the light of aforesaid sections. 10. In Prakash v. State of M.P. (supra) this Court has taken note of the change in criminal jurisdiction dealing with imposition of small punishment and the object of sections 360 and 361 CrPC with a view to deal with first accused leniently for releasing him on probation of good conduct instead of giving him punishment in order to give him a chance of reforming him and to protect him from being corrupted or turned into a regular criminal. With this holy object sections 360 and 361 were provided in the Code of Criminal Procedure. 11. A bare perusal of the order passed by learned JMFC and Sessions Judge, Vidisha shows that both the Courts below have not applied the provisions of sections 360 and 361. Accordingly, the judgment impugned cannot be upheld. 12. This Court is of the considered opinion that if a person fulfills the requirement of section 360 (1) of CrPC, the competent Court is under a legal and mandatory obligation to consider his case in the touch stone of the aforesaid provisions for the purpose of granting him benefit of probation. Accordingly, the judgment impugned cannot be upheld. 12. This Court is of the considered opinion that if a person fulfills the requirement of section 360 (1) of CrPC, the competent Court is under a legal and mandatory obligation to consider his case in the touch stone of the aforesaid provisions for the purpose of granting him benefit of probation. The Courts are bound to consider his case as per the provisions of sections 360 and 361 of CrPC. 13. It is profitabl to quote section 360 (4) of CrPC., which reads as under:- "360 (4) An order under this section may be made by any appellate Court or by the High Court or Court of Sessions when exercising its power of revision." 14. This provision makes it clear that even this Court has power to invoke sections 360 and 361 CrPC while exercising its powers of revision. On the basis of apparent facts, I deem it proper to invoke sections 360 and 361 in exercise of powers of revision as per section 360 (4) of CrPC. 15. Accordingly, while maintaining the conviction of the petitioner, I direct that he will be dealt with section 360 CrPC and shal be released on probation of good conduct instead of further sentencing him, on his entering into a bond with one surety in the sum of Rs. 15,000/- (Rupees Fifteen Thousand) to the satisfaction of learned JMFC, Vidisha, to appear and receive the sentence when called upon during the period of one year. The bond shall be executed for a period of one year. 16. The revision is disposed of accordingly. Amit Lahoti for petitioner; B.K. Sharma, Public Prosecutor for respondent/State.