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2014 DIGILAW 2285 (ALL)

RAJ KARAN v. STATE OF U. P

2014-08-01

RANJANA PANDYA

body2014
Hon'ble Mrs. Ranjana Pandya,J. 1. This revision has been preferred against the order dated 06.06.1988 passed by Ist Additional Sessions Judge, Muzaffarnagar dismissing Criminal Appeal No. 90 of 1987 and confirming the conviction and sentence of the revisionists under Sections 452 and 323/34 I.P.C. passed by Vth Additional Sessions Judge, Muzaffarnagar on 18.11.1987, in S.T. No. 229 of 1985, convicting the accused person under Sections 323/34 and 452 I.P.C. and sentence each of the accused to six months imprisonment under Section 323/24 I.P.C. and two years imprisonment under Section 452 I.P.C. 2. Feeling aggrieved, the revisionists have come up in the present revision. 3. Brief facts are that, prior to the incident, the complainant Kishan Lal had been a witness against the accused appellant Raj Kiran in a case under Section 324 I.P.C. in which Raj Kiran was convicted. Raj Kiran was aggrieved by this conviction. On 11.04.1984 at about 08.30 A.M., Raj Kiran armed with his licenced gun accompanied with his brother Gopal entered in the house of Kishan Lal exhorting him to teach a lesson of being a witness against him, fired a shot from his licenced gun at him. At this Kishan Lal rushed inside to save his life. Hence, the accused Ompal assaulted Smt. Mahabiri, sister-in-law of Kishan Lal with lathi. On hearing the gun shot fire and hue and cry, witnesses Rohtash, Kunda, Natthu and others come on the spot of occurrence for rescue. The F.I.R. of this incident was lodged on the same day at 10:15 A.M. The Magistrate committed the case to the court of session. Learned Assistant Sessions Judge has framed charges under Sections 307, 323/34 and 452 I.P.C. against the accused persons who denied the charges and claimed trial. 4. The prosecution examined as PW-1 Kishan Lal, complainant, PW-2 Natthu, PW-3 Dr. B.S. Panwar and PW-4 S.I. Akhal Singh. 5. In the statements recorded under Section 313 Cr.P.C., the revisionists took the plea that a murder case of their father was prosecuted against one Deep Chand seven years ago and he was sentenced to life imprisonment. It was further stated that the revisionist Kishan Lal was a witness on behalf of Deep Chand accused in that case and the accused have been falsely implicated due to enmity. 6. I have gone through the impugned judgment and order as well as the material on record of the courts below. 7. It was further stated that the revisionist Kishan Lal was a witness on behalf of Deep Chand accused in that case and the accused have been falsely implicated due to enmity. 6. I have gone through the impugned judgment and order as well as the material on record of the courts below. 7. It is settled principle of law that the revisional jurisdiction is not as wide as the appellant jurisdiction and under the revisional jurisdiction, the High Court is required to exercise its powers where there is material irregularity or manifest error of law or procedure, or there is misconception or misreading of evidence or where the court below has failed to exercise jurisdiction vested in it or has exercised the jurisdiction wrongly and perversely or where the facts admitted or proved do not discloses any offence. 8. As a broad proposition, the interference of revisional court may be justified in cases (I) where the decision is grossly erroneous (ii) where there is no compliance with the provision of law (iii) where the finding of fact affecting the decision is not based on evidence on record (iv) where the material evidence of parties has not been considered (v) where the court below has misread or mis-appreciated the evidence on record (vi) where the judicial discretion has been exercised arbitrarily or perversely. 9. In exercise of revisional jurisdiction the court may not exercise jurisdiction to reassess the evidence and reappraisal of evidence is not permissible within the revisional jurisdiction. Hon'ble the Apex Court in A.I.R. 1999 Supreme Court 981 in the case of State of Kerala Vs. Putthumana Illath Jathavedan Namboodiri has held that "the High Court while hearing revision does not work as an appellate court and will not re-appreciate the evidence, unless some glaring mistake is pointed out to show that injustice has been done". 10. In A.I.R. 2002 Supreme Court 2229 in the case of Jagannath Chaudhary Vs. Ramayan Singh, Hon'ble Apex Court has held that "revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error on point of law resulting in miscarriage of justice". Similarly In A.I.R. 2002 Supreme Court 107 in the case of Munni Devi Vs. Ramayan Singh, Hon'ble Apex Court has held that "revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error on point of law resulting in miscarriage of justice". Similarly In A.I.R. 2002 Supreme Court 107 in the case of Munni Devi Vs. State of Rajasthan and others it was held by Hon'ble Apex Court that "while exercising the revisional power the High Court has no authority to re-appreciate the evidence in the manner as the trial court and appellate courts are required to do". 11. In another case A.I.R. 1993 Supreme Court 1126 in the case of State of Karnataka Vs. Appa Balu Ingale and others it has been held by the Hon'ble Apex Court that "generally speaking, concurrent findings of fact arrived at by two courts below are not to be interfered with by the High Court in absence of any special circumstances or unless there is any perversity". 12. Considering the limited scope of revisional jurisdiction it is apparent that the evidence recorded by trial court and re-appreciated by the appellate court is not required to be re-appreciated again on the point raised by the learned counsel for the revisionist. The appellant court has given findings after detailed discussions and has found no substance in the arguments of accused-appellant. 13. 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 Section 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. 14. 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 or 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. Yet the Legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one or 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. 15. 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. Tow 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 provisions 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. 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. 16. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 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." 17. This was a duty of the trial court and also of the appellate court to state reasons as to why they did not think it proper to release the offenders on probation on the basis of their good conduct. 18. Section 4 of the Probation of Offenders Act reads as follows: "4. This was a duty of the trial court and also of the appellate court to state reasons as to why they did not think it proper to release the offenders on probation on the basis of their good conduct. 18. Section 4 of the Probation of Offenders Act reads as follows: "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 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 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. (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 sub-section (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 sub-section (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. 19. Thus, I find no illegality, impropriety or irregularity in the order under revision. The revision is liable to be dismissed. 20. The revision is accordingly dismissed. 21. 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 committed 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. ——————