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2014 DIGILAW 2125 (ALL)

Chandrika v. State

2014-07-17

RANJANA PANDYA

body2014
JUDGMENT Mrs. Ranjana Pandya,J. 1. This revision has been preferred against the Judgment of the 7th Additional Sessions Judge, Varanasi dated 13.4.1988 in Criminal Appeal No. 12 of 1988 upholding the sentence and conviction passed by the Judicial Magistrate, Varanasi dated 21.1.1988 under Section 411 I.P.C. 2. Brief facts of the case are that a report was lodged by the comp lainant that during the night of 16/17th June 1982, some unknown miscreants broke open the door of the room and committed theft of his pumping set and the thieves also robbed the pumping set of Radheshyam son of Megh Narain Rai kept in the same room. The matter was reported to the police Station by Radheyshyam on 18.6.1982 on the basis of which a case under Section 380, 457 bearing Case Crime No. 25 of 1982 was registered against unknown persons. During the course of investigation, the name of accused persons Chandrika Prasad and Raj Kumar came into light who confessed before the police of having committed theft and the said pumping set was said to have been recovered on their pointing out. The recovery was said to have been done from the house of Smt. Abhiraji, who was also main accused in this case. 3. Charges were framed against the accused persons under Sections 380, 457, 411 I.P.C. The accused denied the charges and claimed trial. 4. The prosecution examined P.W.1 Radheyshyam son of Megh Narain, P.W. 2-Radhey Shyam son of Abhiraji, P.W.3- Lalta Rai, P.W.4-Ram Pher Yadav, P.W.5 Chhedi Prasad Upadhyay. Statements of the accused persons were recorded under Section 313 Cr.P.C. 5. The learned trial court, after examining the evidence on record, acquitted all the accused under Sections 457, 380 I.P.C. and convicted all the three accused persons under Section 411 I.P.C. and sentenced accused Raj Kumar and Chandrika to undergo four months rigorous imprisonment but the trial court gave the benefit of Section 4 of the Probation of Offenders Act to Abhiraji accused. 6. Feeling aggrieved the accused Chandrika Prasad and Raj Kumar came up in Appeal No. 12 of 1988. The appellate court did not find any force in the appeal and thus dismissed the appeal against which the appellants Raj Kumar and Chandrika Prasad have come up in the present revision. 7. I have heard the learned counsel for the revisionist and learned A.G.A. 8. The appellate court did not find any force in the appeal and thus dismissed the appeal against which the appellants Raj Kumar and Chandrika Prasad have come up in the present revision. 7. I have heard the learned counsel for the revisionist and learned A.G.A. 8. Counsel for the revisionists has not assailed the finding of the courts below about the conviction of the accused under Section 411 I.P.C., therefore, the conviction of the accused persons under Section 411 has not been assailed before this Court. 9. The arguments advanced on behalf of the counsel for the revisionists is that the reasoning given by the trial court for not granting probation to the present revisionist is erroneous in law and is not legally sustainable. This Court has to examine the propriety, legality and regularity of the order under revision. 10. I find that the evidence of the prosecution witnesses is clear and cogent and there is no illegality in appraisal of the evidence by the courts below. The residual question is applicability of Sections 3 and 4 of the Probation of Offenders Act and Section 360 of the Code. Where the provisions of the Probation of Offenders Act are applicable the employment of Section 360 of the Code is not to be made. 11. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the Legislature who gave birth to the Probation of Offenders Act and the Code wanted to obviate. Yet the Legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial provisions; be it Section 360 of the Code or the provisions of the Probation of Offenders Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative allegation of the provisions of the Probation Act are further noticed in Sub Section (10) of the 360 of the Code which makes it clear that nothing in the said Section shall affect the provisions of the Probation of Offenders Act. Those provisions have importance of their own in the respective areas where they are applicable. 12. The comparative allegation of the provisions of the Probation Act are further noticed in Sub Section (10) of the 360 of the Code which makes it clear that nothing in the said Section shall affect the provisions of the Probation of Offenders Act. Those provisions have importance of their own in the respective areas where they are applicable. 12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of 7 years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation of Offenders Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any rule for Probation Officers in assisting the courts in relation to supervision and other matters while Probation of Offenders Act does make such a provision. While Section 12 of the Probation of Offenders Act states that the persons found guilty of an offence and dealt with under Section 3 or 4 of the Probation of Offenders Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation of Offenders Act as applicable at the same time in a given area cannot be gathered from the provision of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force. The provisions of Section 360 of the Code are wholly inapplicable. 13. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Section 360, 361 of the Code in that area. Section 3 of the Probation of Offenders Act reads as follows: - "3. The provisions of Section 360 of the Code are wholly inapplicable. 13. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Section 360, 361 of the Code in that area. Section 3 of the Probation of Offenders Act reads as follows: - "3. Power of court to release certain offenders after admonition.- When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition. Explanation.- For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4." 14. In the aforesaid background, I think it appropriate to examine why the trial court failed to give the benefit of Section 4 of the Probation of Offenders Act to the present revisionist. 15. Perusal of the Judgment of the lower court shows that the lower court opined that the accused Ram Kumar and Chandrika Prasad are mature minded persons, who have willingly committed the murder. This is not supported by any material on record and the Magistrate has failed to specify as to how he reached to the conclusion that the revisionists were mature minded persons who had committed the offence purposely. Thus, I think the revision deserves to be allowed. 16. In the circumstances, the Judgment passed by appellate court in Appeal No. 12 of 1988 is set aside and also Judgment passed by the V Additional Munsif Magistrate as far as it relates to sentencing the accused Chandrika and Raj Kumar to four months rigorous imprisonment is set aside. Thus, I think the revision deserves to be allowed. 16. In the circumstances, the Judgment passed by appellate court in Appeal No. 12 of 1988 is set aside and also Judgment passed by the V Additional Munsif Magistrate as far as it relates to sentencing the accused Chandrika and Raj Kumar to four months rigorous imprisonment is set aside. The revisionists shall get the benefit of Section 4 of the Probation of Offenders Act in stead of sentencing them to four months rigorous imprisonment, they shall file two bonds to the tune of Rs.20,000/- coupled with personal bonds stating that they shall keep peace and not commit any offence during the period of one year and will be of good behaviour. If there is breach of any of the aforesaid conditions they will subject themselves to undergo sentence before the Magistrate as per rules. The bonds aforesaid be filed by the accused persons within two months from the date of the Judgment.