Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 812 (GAU)

Sona Miah (MD. ) v. State of Tripura

2012-06-30

SUBHASIS TALAPATRA

body2012
JUDGMENT S. Talapatra, J. 1. This revision petition filed under Section 397 read with Section 401 of the Criminal Procedure Code, 1973, for short Cr. P.C., is directed against the judgment and order dated 16.12.2004 as passed in Criminal Appeal No. 10(3)/2004 by the learned Addl. Sessions Judge, North Tripura, Dharmanagar. By the impugned judgment and order dated 16.12.2004, the learned Addl. Sessions Judge had affirmed the judgment of conviction, but modified the order of sentence from rigorous imprisonment of one year to rigorous imprisonment for six months with fine of Rs. 500/- each, under Section 324 of IPC. Mr. C.S. Sinha, learned counsel appearing for the petitioners namely (1) Md. Sona Miah and (2) Md. Nanu Miah, contended that both the trial court and the appellate court below had committed a serious infraction of law which cannot go unnoticed for justice. He very candidly submitted that the petitioners will not base their submission before this court on any other grounds as recited in the revision petition except that the learned trial court as well as the appellate court had failed to discharge their duties by not considering for probation of the petitioners under Section 360 of Cr. P.C. 2. Mr. P. Bhattacharjee, learned Addl. Public Prosecutor, after scrutiny of the judgment and order dated 31.07.2004 as passed by the trial court in GR. No. 204/2002, submitted that the trial court had considered whether the petitioners are entitled to get any benefit under the Probation of Offenders Act or under Section 360 of Cr. P.C. The trial court, on such purported consideration held that there was no scope to release the petitioners on probation as he found that there was a common object to assault and injure the victim, Mamin Miah. The learned appellate Court, Mr. P. Bhattacharjee, learned Addl. Public Prosecutor candidly acceded to, did not make any consideration under Section 360 of Cr. P.C. 3. Law in this regard to a great extent is crystalised. In Sushil Murmu Vs. State of Jharkhand, as reported in (2004) 2 SCC 338 , the Apex Court has enunciated the law as under: ..................There is another provision in the Code which also uses the significant expression "special reason". It is Section 361. Section 360 of the Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in short "the old Code"). State of Jharkhand, as reported in (2004) 2 SCC 338 , the Apex Court has enunciated the law as under: ..................There is another provision in the Code which also uses the significant expression "special reason". It is Section 361. Section 360 of the Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in short "the old Code"). Section 361 which is a new provision in the Code makes it mandatory for the court to record "special reasons" for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever 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 circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed. 4. In the case in hand, this court does not find any special reason which compelled the court to hold that it is improbable to get the offenders reformed and rehabilitated after examining the matter with due regard to the age, character and antecedents of the offenders. 4. In the case in hand, this court does not find any special reason which compelled the court to hold that it is improbable to get the offenders reformed and rehabilitated after examining the matter with due regard to the age, character and antecedents of the offenders. The reason that has been given by the learned trial court does not fit under the scheme of Section 360 of Cr. P.C. 5. In Manindra Das Vs. State of Tripura, as reported in (1996) 2 GLR 51, this Court has interpreted the provisions of Section 4 of the Probation of Offenders Act, 1958 and Sections 360 and 361 of Cr. P.C. The following passages are gainfully reproduced hereunder: 12. The wider provision will be found in Section 4 of the Probation of Offenders Act, 1958 which is extracted below:- 4. Power of court to release certain offenders on probation of good conduct.- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which me person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, 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 the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under subsection (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under subsection (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders. The sureties, if any, and the probation officer concerned. 13. In the Case of Hari Kishan and State of Haryana, Appellants vs. Sukhbir Singh and others Respondents, reported in AIR 1988 SC 2127 , it has been laid down inter alia as follows:- 8. The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? We gave our anxious consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not shown to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to first offenders cannot be said to be inappropriate. 14. In the case of Roshanali Burhanali Syed, Appellant vs. State of Gujarat, Respondent, reported in AIR 1982 SC 784 , it has been observed that under the provisions of the Probation of Offenders Act, 1958 (Section 4 of the Act) a person who was above 21 years of age could be released on probation. 15. There is, however, no bar under Section 360 of the Criminal Procedure Code, 1973 to release on probation of good conduct or after admonition any person not under 21 years of age. The purpose of Section 360 of Criminal Procedure Code, 1973 and the provisions of Probation of Offenders Act, 1958 are reformatory in nature and have been legislated with a view to bring it good to the society and for giving opportunity to persons convicted of offences with fine only or with imprisonment for a term of 7(seven) years or less. In the present case both the Courts below that is Judicial Magistrate, 1st Class, Kamalpur, North Tripura and learned Additional Sessions Judge, North Tripura, Kamalpur failed to exercise their powers under Section 361 of the Criminal Procedure Code, 1973 properly. The provisions of Section 361 of the criminal Procedure Code, 1973 reads as follows:- 361. Special reasons to be recorded in certain cases. - Where in any case the court could have dealt with. The provisions of Section 361 of the criminal Procedure Code, 1973 reads as follows:- 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. 16. This Court has power under sub-section 4 of Section 360 of the Criminal Procedure Code, 1973 to invoke Section 360 or provisions of Probation of Offenders Act, 1958. 17. It is observed that Courts below sometimes do not adhere to the provisions of Section 361 of the Criminal Procedure Code, 1973. It is the bounden obligation of the Courts below to record special reasons as to why the accused persons shall not be given benefit of Section 360 of the Criminal Procedure Code, 1973 or under the provisions of Probation of Offenders Act, 1958 or under the Children Act, 1960 or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders. 6. In Sushil Murmu (supra) the Apex Court has stated that the special reason as contemplated under Section 361 of the Cr. P.C. 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 circumstances in which the offence was committed The very purpose of this legislative provision is to ensure reformation and rehabilitation of the offenders and not merely engaging the criminal justice system for deterrence. The foremost object of the administration of criminal justice in our country is reformation. Sections 361 and Section 354(3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in the criminology. The foremost object of the administration of criminal justice in our country is reformation. Sections 361 and Section 354(3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in the criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. The special reasons must have relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A judge has to balance the personality of the offender with the circumstances, situations and the reactions and determine the appropriate sentence. This High Court has also decided in the similar line in Manindra Das (supra). 7. From the appreciation of the entire evidence as well as the observation as made by the learned trial Court, while considering whether the convict petitioners would be given the benefit of Section 360 of the Cr.P.C. it appears that the petitioners are not a dangerous criminal, but of weak characters who have surrendered to anger. It is found from the evidence that there was no pre-mediation but on the spurt of the moment the clash between two groups took place. 8. Learned Addl. Sessions Judge has correctly placed the facts while passing the impugned judgment that while the informant's grandson Mamin Miah was proceeding towards the house of his sister, he found fencing over the public road. Therein the appellant Nanu Miah came there and rebuked him with slang language. Thereafter, one by one, the appellants came to the spot and one of them gave him a kick. Then Mamin Miah started hue and cry and as a result one Joynal Miah came there and the appellants attacked them. In the meantime, his maternal uncle Sona Miah (not the petitioner No. 1) came there and the appellants being armed with dao, spare, also attacked him, causing bleeding injuries to him. Then they rushed to the house of the informant and threatened her and her family members with dire consequences. The present petitioners ultimately were convicted under Section 324 of IPC. 9. Then they rushed to the house of the informant and threatened her and her family members with dire consequences. The present petitioners ultimately were convicted under Section 324 of IPC. 9. This Court instead of remanding the case for fresh consideration on the sentence by the learned trial Court and on taking all relevant considerations is of the view that it would be proper and just to exercise the power as conferred under Section 360(4) of the Cr. P.C. and to pass an appropriate order on scrutiny of all relevant factors as indicated and in the interest of justice. 10. It is directed that the convict petitioners instead of being imposed with any term of imprisonment, be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958. 11. Accordingly, the convict petitioners namely, (1) Md. Sona Miah and (2) Md. Nanu Miah are to be released on their entering into a bond of good behaviour and maintaining peace for a period of 1 (one) year supported by 2(two) sureties each, one of them must be a Government employee having permanent residence at South Hurua under Dharmanagar Police Station to the satisfaction of the Judicial Magistrate 1st Class, Dharmanagar, North Tripura or the Sub-Divisional Judicial Magistrate, Dharmanagar, North Tripura The convict petitioners shall remain under supervision of the designated Probation Officer for the North Tripura District during the said period. If it is reported to the learned trial court (Sub 10 Divisional Judicial Magistrate, Dharmanagar, North Tripura) that the convict petitioners have acted in contravention of any law or they are found involved in any public nuisance or for their any conduct, apprehension to peace arose, then on the report of the designated Probation Officer they shall appear and receive the sentence as passed by the learned trial Court and also pay the fine as has been imposed on them. Similarly, on failure of furnishing the bond of good conduct etc., the petitioners shall surrender in the trial court forthwith to undergo the sentence. With this observation and directions, this revision petition stands disposed of. Send down the LCRs forthwith.