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2014 DIGILAW 497 (UTT)

DEVI SHARMA v. STATE OF UTTARAKHAND

2014-10-28

ALOK SINGH

body2014
JUDGMENT Hon’ble Alok Singh, J Present revision is preferred against the judgment and order dated 13.07.2012 passed by Judicial Magistrate, Rudrapur, District Udham Singh Nagar whereby both the revisionists were held guilty for the offences punishable under Section 323, 324 IPC and were sentenced to undergo rigorous imprisonment for a period of six months each under Section 323 IPC and further sentenced to undergo one year rigorous imprisonment and to pay fine of Rs. 1,000/- each under Section 324 IPC; and against the judgment and order dated 04.09.2014 passed by III Additional Sessions Judge, Rudrapur, Udham Singh Nagar whereby appeal filed by the accused /revisionists, herein, was dismissed upholding the conviction and sentence awarded by the trial court. 2. Mr. M.K. Ray, learned counsel for the revisionists, has vehemently argued that since both the revisionists are first time offender and were sentenced to undergo rigorous imprisonment for a maximum period of one year, therefore, both the revisionists should be released on probation by giving benefit of the Probation of Offenders Act, 1958 and while doing so this Court may award reasonable compensation to be paid by the accused revisionists to the injured/victim – Sonu Chauhan under Section 5 of the Probation of Offenders Act, 1958 read with Section 357 (3) Cr.P.C. 3. Mr. Raman Kumar Sah, Deputy Advocate General for State of Uttarakhand, submits that he has not received any report about the criminal antecedents of accused/revisionists and both of them seem to be first time offender. 4. Hon’ble Apex Court in the case of Commandant, 20th Battalion, ITBP Vs. Sanjay Binjola reported in 2001 SCC (Cri.) 897 in paragraph 7 has held as under: “7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act.” 5. Sections 3, 4, 5 and 6 of the Probation of Offenders Act, 1958 read as under: “3. Sections 3, 4, 5 and 6 of the Probation of Offenders Act, 1958 read as under: “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.” 4. Power of court to release certain offenders on probation of good conduct 1. 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.” 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. 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. 5. Power of court to require released offenders to pay compensation and costs.— 1. The court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay— a. such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; b. such costs of the proceedings as the court thinks reasonable. 2. The amount ordered to be paid under sub-section (1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code. 3. A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as compensation under sub-section (1) in awarding damages. 6. Restrictions on imprisonment of offenders under twenty-one years of age.— 1. When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. 2. 2. For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub-section (1) the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.” 6. A bare perusal of the Section 3 would demonstrate that if a person is found guilty for the offence punishable under Section 379 or 380 or 381 or 404 or 420 IPC or for any other 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 such person is found to be first time offender, the Court after due admonition may direct release of such person on probation of good conduct under Section 4 of the Act. Explanation to Section 3 of the Act would demonstrate that previous release on probation shall be treated as previous conviction. Meaning thereby, if such a person has already been released on probation by giving benefit of probation of first offender Act, at any earlier point of time, he cannot seek release on probation for the subsequent offence in subsequent trial. In other words, benefit of the Probation of Offenders Act, 1958 can be extended to the accused once in a life time, if other conditions of Sections 3 and 4 are available. 7. Section 4 of the Act would demonstrate that if a person is found guilty of having committed an offence not punishable with death or imprisonment for life, in that event, considering the nature of the offence and the character of the offender, the Court instead of sentencing him at once to any punishment may release such person on probation of good conduct, on his entering into a bond, with or without sureties, for a period not exceeding three years. Before releasing the offender, on probation, the Court must satisfy itself that 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. Before releasing the offender, on probation, the Court must satisfy itself that 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. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court while releasing on probation may also direct that accused shall remain under the supervision of Probation Officer for a period not less than one year. 8. A combined reading of Sections 3 and 4 of the Act would reveal that if offence is punishable not more than 2 years then release on probation shall be after admonition. However, if offence is punishable for a period more than 2 years but not punishable with death or imprisonment for life, admonition of sentence shall not be required and if person, released on probation, is found involved in any offence during the period of probation or otherwise, is found behaving in violation of condition of bond, he shall be directed to serve out the sentence awarded by the court. In other words, while on probation such person should not involve himself in subsequent offence or must honour the condition of his bond/surety bond and if he breaches the same, he has to serve out the sentence awarded by the Court. Section 5 of the Act gives powers to the court to direct the offender to pay compensation/costs to the victim, as the court may deem fit. 9. As per mandate of Section 6 of the Act, if offender is under 21 years of age, he has to be released on probation, if all the conditions of Section 3 and 4 of the Act are found satisfied, unless of course court records its satisfaction in writing that release on probation would not be desirable, considering the nature of the offence as well as character of the offender. As per Section 11 of the Act, powers as provided under Sections 3, 4 and 5 of the Act may be exercised by the Appellate or Revisional Court as well. 10. As per Section 11 of the Act, powers as provided under Sections 3, 4 and 5 of the Act may be exercised by the Appellate or Revisional Court as well. 10. In the case in hand, both the accused/revisionists are first time offenders; fight seems to have taken place on account of some dispute pertaining to Rasta, that too all of a sudden. It means that both the accused have not planned alleged assault on Sonu Chauhan. Injury on the person of Sonu Chauhan was not held to be danger to life, therefore, keeping in mind the object of the Probation of Offenders Act, 1958, no useful purpose would be served in keeping the accused/revisionists in jail to serve out the remaining sentence, consequently, they should be released on probation in order to reform themselves. 11. For the injury and pain suffered by injured Sonu Chauhan, he may be compensated by directing the accused revisionists to pay compensation of Rs. 40,000/- (Rs. 20,000/- by each of them), as provided under Section 5 of the Act read with Section 357 (3) of the Criminal Procedure Code. 12. Present revision thus, stands disposed of with direction that revisionists shall be released on probation for the period of three years, on furnishing their personal bonds to the satisfaction of learned Trial Magistrate with one – one surety each. Learned Magistrate shall be at liberty to impose such condition(s) while accepting the bonds, which he deems fit and proper, in accordance with law. Revisionists accused shall also deposit Rs. 40,000/- (Rs. 20,000/- by each of them) with the trial Magistrate while furnishing the bonds. Having received Rs. 40,000/- from the accused/revisionists, learned Magistrate shall issue notice to injured Sonu Chauhan to receive the amount of compensation deposited by revisionists and shall ensure the payment of compensation to Sonu Chauhan. It goes without saying that if accused revisionists failed to observe good conduct and behaviour during probation or are found violating any condition imposed by the learned Magistrate, learned Magistrate shall be at liberty to cancel the bonds calling the accused to serve out the sentence. 13. Let copy of this judgment be forwarded to learned trial Magistrate for information/compliance. 14. Let copy of this judgment be circulated to all the Judicial Officers subordinate to this Court for information.