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2014 DIGILAW 283 (TRI)

Mithun Debnath v. State of Tripura

2014-07-18

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta, C.J. 1. This criminal revision petition is directed against the judgment dated 26.03.2011 delivered by the learned Additional Sessions Judge, Court No. 3, West Tripura, Agartala in Criminal Appeal No. 34(4) of 2010 whereby he dismissed the appeal of the appellant and upheld the judgment dated 30.09.2010 passed by the learned Judicial Magistrate 1st Class, Agartala, West Tripura, in case No. G.R. 58 of 2009 convicting the accused of having committed offences punishable under Section341 read with Section 325 of the Indian Penal Code (IPC) and sentenced him to undergo rigorous imprisonment for a period of 2(two) months. The prosecution story, briefly stated, is that on 13.01.2009 when the victim Pradip Saha was going towards his neighbour's house on a bicycle and was near the pump house, then the accused Mithun Debnath stopped the bicycle, pulled Pradip Saria down from the bicycle and assaulted him. As a result of the assault, the victim received injuries and was taken to the G.B. Hospital. Thereafter, case under Sections 341 and 325 of IPC was registered. The allegations are that the appellant wrongfully and illegally restrained Pradip Saha from proceeding on the road and further caused him grievous injury. 2. The statement of Pradip Saha is relevant. He appeared as PW-2 and stated that when he was proceeding towards his friend's house on a bicycle, the accused Mithun Debnath used abusive language against him, pulled him down from his bicycle and assaulted him fiercely and after that he lost consciousness. According to this witness, Mithun was on a picnic along with many other boys who had witnessed the occurrence. 3. In revisional proceedings, this Court does not normally interfere in finding of fact and the statement of the victim has been supported by the other witnesses on this basic aspect of the case that the victim was stopped and beaten by Mithun. No doubt, there are some contradictions but as far as this portion of the statement is concerned, that is supported by all the witnesses. Therefore, it stands established that the victim was illegally restrained by the accused and was assaulted by him. 4. PW-8, Dr. Somen Debbarma was the medical officer, who treated the victim and according to him, the victim had to undergo CT Scan of brain and there was injury to the head which was grievous in nature. Therefore, it stands established that the victim was illegally restrained by the accused and was assaulted by him. 4. PW-8, Dr. Somen Debbarma was the medical officer, who treated the victim and according to him, the victim had to undergo CT Scan of brain and there was injury to the head which was grievous in nature. In cross-examination, the doctor has opined that the injury can be either caused due to a blunt weapon or even by a fall. PW-3, PW-4 and PW-6 are independent witnesses and have supported the prosecution case. 5. Therefore, I am of the considered view that the conviction of the accused is justified and the same is upheld. 6. The punishment in case of an offence under section 325 of IPC is 7 years and the punishment in case of an offence under Section 341 of IPC is one month or fine. The question is whether the Court should have granted benefit to the accused of the provisions of section 360 of the Code of Criminal Procedure (Cr.P.C.) or Section 4 of the Probation of Offenders Act. 7. Section 360 of the Cr.P.C. reads as follows:-- "360. The question is whether the Court should have granted benefit to the accused of the provisions of section 360 of the Code of Criminal Procedure (Cr.P.C.) or Section 4 of the Probation of Offenders Act. 7. Section 360 of the Cr.P.C. reads as follows:-- "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 is convicted 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 mean-time 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). xxx xxx xxx (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, me 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." 8. A bare perusal of section 360 shows that when a person over 21 years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, then if it appears to the Court before which he is convicted that having regard to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed that the offender should be released on probation of good conduct, the Court instead of sentencing the accused may direct that he be released on entering into a bond of good behaviour with or without sureties undertaking to receive sentence if he violates the provisions of the probation and does not keep peace or good behaviour. Under sub-section (3) in respect of certain offences the Court may instead of sentencing the accused, release him after admonition. 9. The Probation of Offenders Act, 1958 was enacted by Parliament and as per the statement of objects and reasons, the Government felt that there should be uniform probation law in all the States. It was felt that there is an increasing emphasis on reformation and rehabilitation of the offender as a useful and self relying member of society without subjecting him to the deleterious effects of jail life. Therefore, the Act was enacted and Section 3 permits the Court to release offenders after admonition where they have been convicted under sections 379, 380, 381, 404 or 420 of the IPC or with any other offence where the punishment is not more than two years. In cases of other offences, the provisions of section 4 are applicable which read as follows:-- "4. In cases of other offences, the provisions of section 4 are applicable which read 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." 10. A bare perusal of section 4 shows that when any person is found guilty of having committed an offence not punishable with death or imprisonment for life, the Court having regard to the circumstances of the case including the nature of the offence may release the convict on probation on terms and conditions which may be laid down as per the provisions of the Act. However, before passing any order of granting probation, the Court must obtain the report of the probation officer in terms of section 4 of the Act. Without obtaining such a report, no order for grant of probation can be passed. 11. The provisions of Section 360 of the Cr.P.C. and Section 4 of the Probation of Offenders Act have been the subject matter of a large number of decisions. Criminal law is meant to deal with criminals. Obviously when a crime is committed and the crime is against the State, the accused if found guilty has to be convicted and sentenced. Over the years, there has been change in thinking. Imprisonment is not always the only answer. Sentencing need not only be retributive in nature it can also be reformative in nature. There can be no hard and fast rule as to in which cases probation is to be granted and in which cases it is not to be granted. Even with regard to the same offence, in certain cases probation may be granted and in certain cases probation may not be granted. Many factors will have to be taken into consideration. There can be no hard and fast rule as to in which cases probation is to be granted and in which cases it is not to be granted. Even with regard to the same offence, in certain cases probation may be granted and in certain cases probation may not be granted. Many factors will have to be taken into consideration. One of the principal factors will be the nature of the offence and by nature it is not only the section under which the offence is committed which is relevant but the manner in which the offence has been committed is also relevant. If the offence is committed at the heat of the moment due to a sudden altercation, the Court would be lenient towards the offender. However, if it is a case of a premeditated offence, then the Court may not grant probation. If a plan is made out to assault a certain person, that may be a ground not to grant probation. On the other hand, in case an occurrence takes place at the heat of the moment and a grievous injury is caused, then also probation may be granted if other conditions are satisfied. 12. Another important aspect to be taken into consideration is the age of the offender. If the offender is a person of young age, then the Court should always make an endeavour to release him on probation. It does not serve society any purpose if a young boy or girl of 20 or 21 years is sent to jail and made to live with hardened criminals. This Court is not oblivious to the fact that despite best intentions of the State and the jail authorities, the state of the jails is very bad and the young offenders may come in contact with hardened criminals in jail and may themselves become hardened criminals. This Court is not oblivious to the fact that in jails throughout this country many vices are available which are not so easily available outside the jails. Jails themselves are dens of corruption and it is better to keep young impressionable minds outside the jail rather than send them to jail. Therefore, though there has to be some element of retribution while awarding sentence, the element of reformation must also be considered. Jails themselves are dens of corruption and it is better to keep young impressionable minds outside the jail rather than send them to jail. Therefore, though there has to be some element of retribution while awarding sentence, the element of reformation must also be considered. The two must be balanced and if on balance it is found that it is better to release the person on probation, probation or benefit under section 360 of Cr.P.C. must be granted. 13. While doing so, the Court has ample power to award sufficient compensation under section 5 of the Probation of Offenders Act and also in terms of section 357of the Cr.P.C. and sometimes a punitive order in the nature of compensation may be a much harsher order. It depends on the facts and circumstances of this case. Unfortunately, in this country we have not developed the system of awarding social service as a punishment wherein the offender has to serve society instead of serving out sentence in jail. It is high time that such a system is evolved. A copy of this judgment may be sent to the Chief Secretary to the Government of Tripura who may place it before the concerned authorities who may consider making amendments in the Central laws or framing a State law providing system of sentencing wherein the offender will have to do social work. To give an example, if two groups in a college enter into a fight and injuries are caused on both sides, to grant probation and let them go totally free may not also be in the interest of society. In such cases, these young students can be awarded punishment by asking them to serve as guides in hospitals, give tuitions etc. so that they learn how to serve society and it is better to award punishment of this nature than to award a sentence of sending them for two months to jail. 14. I have by now spent almost 15 months in Tripura and I have yet to come across a single criminal case where any of the Courts in Tripura has given the benefit of probation either under the Probation of Offenders Act or under section 360 of the Cr.P.C. to any victim. 15. Coming to the case in hand, the punishment awarded is only two months rigorous imprisonment The accused at the time of conviction was aged 23 years. 15. Coming to the case in hand, the punishment awarded is only two months rigorous imprisonment The accused at the time of conviction was aged 23 years. What is the use of sending him behind prisons for two months and why benefit of section 360 could not have been given to him? Just saying that the provisions of section360 and the Probation of Offenders Act are not applicable is not sufficient compliance with the provisions of Section 361 of the Cr.P.C. which read 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. The legislative intent is clear from Section 361 that where any case is covered by the provisions of section 360 of the Cr.P.C. or by the provisions of the Probation of Offenders Act, the Judge must in his judgment record special reasons for not extending the benefit of these two provisions. The words "special reasons" mean that normally the benefit must be given and special reasons must be given when the benefit is not to be given. Here reference may be made to certain judgments of the Apex Court. 17. For the first time, the Apex Court dealt with the provisions of the Probation of Offenders Act in Raton Lal v. The State of Punjab, [ AIR 1965 SC 444 ]. The Court held that the provisions of the Probation of Offenders Act which were reformative in nature would even apply retrospectively. While coming to this conclusion, the Apex Court held as follows:-- "4. The Act is a milestone in the progress of the modern 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. While coming to this conclusion, the Apex Court held as follows:-- "4. The Act is a milestone in the progress of the modern 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. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied mat, having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3and 4of the Act." 18. Thereafter in Arvind Mohan Sinha v. Amulya Kumar Biswas & Ors., [ AIR 1974 SC 1818 ], the Apex Court again considered the provisions of the Probation of Offenders Act and held that even offenders who had violated the "Defence of India Rules" and "Gold Control Rules" would be entitled to the benefit of the Probation of Offenders Act. The Apex Court held as follows:-- "11. The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society. A jail term should normally be enough to wipe out the stain of guilt but the sentence which the society passes on convicts is relentless. The ignominy commonly associated with a jail term and the social stigma which attaches to convicts often render the remedy worse than the disease and the very purpose of punishment stands in the danger of being frustrated. In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the novice who strays into the path of crime ought, in the interest of society, be treated as being socially sick. Crimes are not always rooted in criminal tendencies and their origin may lie in psychological factors induced by hunger, want and poverty. The Probation of Offenders Act recognises the importance of environmental influence in the commission of crimes and prescribes a remedy whereby the offender can be reformed and rehabilitated in society. An attitude of social defiance and recklessness which comes to a convict who, after a jail term, is apt to think that he has no more to lose or fear may breed a litter of crime. The object of the Probation of Offenders Act is to nip that attitude in the bud. Winifred A. Slkin describes probation as a system which provides a means of re-education without the necessity of breaking up the offender's normal life and removing him from the natural surroundings of his home. (English Juvenile Codes (1938) page 162) Edwin R. Sutherland raises it to a status of a convicted offender. (Principles of Criminology, 4th Edn. (1947) page 383.) 12. The probationary system in our country is sometimes described as a boon of political freedom but that does less than justice to true history. The Dharmashastras did not ordain similar punishment for similar offences irrespective of the antecedents and the physical and mental condition of the offender. (History of Dharmashastra by Dr. P.V. Kane, Vol. III p.392. (1946 Edn.)). Dr. P.K. Sen has pointed out in his Tagore Law Lectures on "Penology Old and New" (1943) (p. 110) that the directions given by the ancient law-givers in the matter of punishment compare favourably with the advanced modern systems as regards the relevance of the objective circumstances attended on the commission of the crime and the subjective limitations of offenders. Probationary laws were passed by several erstwhile Provinces prior to Independence but their provisions were seldom enforced-in practice. Section562, Code of Criminal Procedure, also contains a provision enabling the court to release certain offenders on probation of good conduct instead of sentencing them at once. 13. Probationary laws were passed by several erstwhile Provinces prior to Independence but their provisions were seldom enforced-in practice. Section562, Code of Criminal Procedure, also contains a provision enabling the court to release certain offenders on probation of good conduct instead of sentencing them at once. 13. There is no foundation for the fear that offenders released on probation may hold the society to ransom and the society may therefore look upon the release of offenders on probation as the triumph of criminals over the weaknesses of law, an offender released on probation is convicted but not forthwith sentenced in the sense of penal laws. Under the disposition made by the Court the sentence is suspended during the period of probation. Section 4(1) of the Act provides that instead of sentencing the offender "at once", the court may direct his release on his entering into a bond to "receive sentence when called upon" during the probationary period and in the meantime to keep the peace and be of good behaviour. Thus it is only in a limited, though a socially significant, sense that the Act constitutes an exception to the broad and general principle of criminal law embodied, for example, in Sections245(2), 258(2), 306(2) and section 309(2), Code of Criminal Procedure, that a sentence shall follow on a conviction." 19. Justice Krishna Iyer in his inimitable style in Dilbag Singh v. State of Punjab, [ AIR 1979 SC 680 ] dealing with the method of penology held as follows:-- "6. The courts in our country consult the punitive tariffs prescribed in the Penal Code, consult the prison period awarded in practice for such offences and with marginal variations mechanise the process. Judged by that test, conviction under S.324 I.P.C. read with S.34 plus substantive guilt under S.323 I.P.C. is visited with two years for the former and one year R.I. especially when the incident has ended in death. But penal humanitarianism, strategies of non-institutional rehabilitation and a complex of other considerations in making an offender a non-offender have a revolutionized the judicial repertory in re-socializing the criminal. The sentence hearing for which the Criminal Procedure Code, 1973 provides in S. 248(2) and S. 235(2) has hardly received the serious concern of the Courts despite the International Probation Year and therapeutic accent in penological literature. The sentence hearing for which the Criminal Procedure Code, 1973 provides in S. 248(2) and S. 235(2) has hardly received the serious concern of the Courts despite the International Probation Year and therapeutic accent in penological literature. 'If the criminal law as a whole is the Cinderella of jurisprudence, then the law of sentencing is Cinderella's illegitimate baby'. Presentence investigation reports, bestowal of intelligent care on the choice between institutional and non institutional disposition and habitual neglect of new avenues open to the court have constrained us to grant leave in the case so that guidelines may be laid down and probation and community-oriented methods lying in the legal limbs may be re-activated. Our prisons are overcrowded, our prisoners are subjected to iatrogenic incarceration, our penal drills are self-defeatingly callous to correctional measures and our jail budges bulge without countervailing community benefits because the Bench and the Bar have dismissed as below judicial visibility such patterns as probation, conditional release. The time has come for Courts to abandon the Monroe Doctrine towards penology and concern itself with innovative sentences. 7. But this involves careful study of the convict and his potentiality for reform, not guesswork nor insensitive assessments. Therefore, we directed, right at the start, the Chief Probation Officer, Punjab, to make a report to this Court "as to the social circumstances and other relevant factors bearing on the consideration of eligibility of the petitioner to probation." That report has been received and its contents indicate competent advertence to pertinent criteria which we may briefly sum up." 20. It would not be necessary to multiply the citations and burden this judgment with many other authorities but reference must be made to the judgment of the Apex Court in Halappa & Ors. v. State of Karnataka, [ (2009) 9 SCC 366 ] wherein the Apex Court held as follows:-- "4. The only question remaining for consideration is whether the benefit of the Probation of Offenders Act, 1958 (for short "the Act') and Section 360 Cr.P.C. ought to have been extended to the appellants. Accused 3 and 4 are women. They did not have any criminal record or previous conviction. Having regard to their age, character and antecedents and the circumstances in which the offence was committed, it is expedient that they should be released on probation of good conduct under Section 360 of the Code of Criminal Procedure. 5. Accused 3 and 4 are women. They did not have any criminal record or previous conviction. Having regard to their age, character and antecedents and the circumstances in which the offence was committed, it is expedient that they should be released on probation of good conduct under Section 360 of the Code of Criminal Procedure. 5. Accused 1 and 2 are also first offenders. The learned Magistrate considered it unnecessary to extend them the benefit of probation, in view of the enmity between the families of the accused and the complainant. We fail to see how such enmity is relevant for considering probation. We are of the view that having regard to the circumstances of the case, nature of the offence, character of the offenders, the learned Magistrate ought to have secured the report of the Probation Officer and then passed appropriate order, taking note of Section 4 of the Act." 21. The modern trend of penology is towards reformation of criminals, especially those who are at the younger age. First time offenders must normally be given a chance to improve themselves. Sending first time offenders to jail in offences where they can get benefit of the Probation of Offenders act or section 360 of the Cr.P.C. is against the spirit of these provisions. As held by this Court above, it is not that in every case this benefit must be extended. The Court convicting the accused is best suited to decide this matter. It is the Judge who has seen the accused, seen his behaviour in Court and also knows how the occurrence took place. If the occurrence shows that the accused is a cruel person and is not likely to improve, the Court would be fully justified in not granting this benefit but if on the other hand, there is material to show that reformation can be carried out if the convict is a first time offender, he must be given benefit of these provisions. 22. Another consideration will also be the social status of the accused. If he belongs to the poor strata of society and has committed a theft because of his penurious financial condition, the Judge can take the same into consideration and give him an opportunity to improve himself. 22. Another consideration will also be the social status of the accused. If he belongs to the poor strata of society and has committed a theft because of his penurious financial condition, the Judge can take the same into consideration and give him an opportunity to improve himself. If on the other hand, it is shown that the person who has committed a crime has thought about the crime, committed it in a manner like a practiced criminal, then he may not be given the benefit thereof. However, as far as possible, the Courts must make an endeavour to find out whether the accused is to be granted this benefit or not and they should not discard these provisions of the Cr.P.C. and the Probation of Offenders Act only by writing two lines that the Judge is not inclined to release the convict under the Probation of Offenders Act or that the offender does not merit the benefits of these provisions. 23. It would also be important to point out that the Apex Court has also laid down in various judgments that the benefit of probation is not to be granted in cases relating to socio-economic offences such as, food adulteration cases or in cases of crimes against women, in cases involving rash and negligent driving etc. or those offences where some minimum sentence is provided. 24. As far as the present case is concerned, even according to the prosecution the victim was going to his friend's house on a bicycle. It is not the case of the prosecution that the accused knew that the victim was to go to his friend's house. On the way, an altercation did take place. It was not pre-planned. The accused did not use any weapon of offence and the injuries were caused by fist blows only. Therefore, I am of the considered view that since the accused is a first time offender and was only 23 years of age at the time of occurrence, this is a fit case where he should be ordered to be released on probation. However, before passing a final order releasing him on probation, a report of the Probation Officer concerned may be called for so as to reach this Court by the next date. List the matter on 21.08.2014. 25. A copy of this judgment shall be circulated to all the officers of the Tripura Judicial Service. However, before passing a final order releasing him on probation, a report of the Probation Officer concerned may be called for so as to reach this Court by the next date. List the matter on 21.08.2014. 25. A copy of this judgment shall be circulated to all the officers of the Tripura Judicial Service. The Court places on record its appreciation for the valuable assistance rendered by Mr. R. Saha, learned counsel for the accused-petitioner.