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Tripura High Court · body

2015 DIGILAW 101 (TRI)

Md. Akbar Khan v. State of Tripura

2015-03-10

S.C.DAS

body2015
ORDER : This revisional application under Section 397 read with Section 401 of Cr.P.C. is directed against the judgment and order dated 21.06.2006, passed by learned Addl. Sessions Judge, Kailashahar, North Tripura in Criminal Appeal No.4(2) of 2006, whereunder the learned Addl. Sessions Judge affirmed the judgment and order of conviction and sentence dated 24.03.2006, passed by learned Chief Judicial Magistrate, North Tripura, Kailashahar in Case No. GR 241 of 2004, under Sections 341, 323 read with Section 34 of IPC. 2. Prosecution case is that on 19.10.2004 at about 930 p.m., the informant Nakul Malakar (P.W.1) accompanied with his brother Amar Malakar (P.W.2) were on way to their house at Dhaliarkandi under Tilagaon Gram Panchayat from Kailashahar market and when they reached in front of the house of the accused petitioner Akbar Khan, at that time, all the accused petitioners armed with ‘dao’, ‘lathi’, spear, etc. attacked them and accused petitioner Ayub Khan thrown a spear aiming Nakul Malakar and he jumped in the roadside paddy land and somehow saved himself otherwise, he would have been killed. He had Rs.550/and newly purchased sari and blouse for his wife and those were snatched away by the accused persons. He raised alarm and on his alarm when the neighbours came, the accused persons went away. 3. Nakul Malakar (P.W.1) lodged the FIR narrating the facts on 20.10.2004 and accordingly, O.C., Kailashahar P.S. registered Kailashahar P.S. Case No.117/04, under Sections 148, 149, 379 and 307 of IPC against the four FIR named accused persons (petitioners) and after investigation of the case, I.O. submitted chargesheet against the accused persons for commission of offence punishable under Sections 341,323 read with Section 34 of IPC. 4. Cognizance was taken on the basis of the police report and in course of trial, learned Chief Judicial Magistrate, Kailashahar on 31.08.2005 examined the accused persons under Section 251 of Cr.P.C. for commission of offence punishable under Sections 341,323 read with Section 34 of IPC to which the accused persons pleaded not guilty and claimed to be tried. 5. Prosecution examined 7(seven) witnessed to prove the charges. 6. After closure of the prosecution evidence, accused persons were examined under Section 313, Cr.P.C. and in their turn, they declined to adduce any defence evidence. 5. Prosecution examined 7(seven) witnessed to prove the charges. 6. After closure of the prosecution evidence, accused persons were examined under Section 313, Cr.P.C. and in their turn, they declined to adduce any defence evidence. Defence case so far ascertained from the trend of crossexamination as well as from examination of the accused persons under Section 313, Cr.P.C., is that there were civil dispute in regard to a path way between the informant and the accused persons and out of grudge a false case has been instituted against the accused persons i.e. the petitioners. 7. At the conclusion of trial, learned Chief Judicial Magistrate found the accused persons guilty of the charges and sentenced them to suffer S.I. for one month for commission of offence punishable under Section 341 read with Section 34 of IPC and further sentenced them to suffer R.I. for 6(six) months for commission of offence punishable under Section 323 read with Section 34 of IPC and directed that the sentences shall run consecutively. 8. Aggrieved, the convict-petitioners preferred Criminal Appeal No. 4(2) of 2006 and the learned Addl. Sessions Judge by impugned judgment dated 21.06.2006 dismissed the appeal and hence, this revisional application is filed by the convict-petitioners challenging the judgments passed by the Courts below. 9. Heard learned counsel Mr. S. Chakraborty for the convict-petitioners and learned Addl. P.P., Mr. R.C.Debnath for the State-respondent. 10. Learned counsel Mr. Chakraborty appearing for the convict-petitioners has submitted that the trial Court as well as the appellate Court failed to comply the provisions of Section 360 of Cr.P.C. and hence, the judgments passed by the trial Court as well as the appellate Court are bad in law and are liable to be interfered. He has also submitted that the convict-petitioners were found guilty of committing offence punishable under Sections 341 and 323 read with Section 34 of IPC which are minor offences and there is nothing adverse in the record that the convict-petitioners earlier involved in any such offence and under such circumstances, the Courts below would give the benefit of Section 360 of Cr.P.C. or Section 4 of the Probation of Offenders Act, 1958. No reason has been assigned by the Courts below as to why the benefit of those provisions has not been given and hence prayed for giving the benefit of Probation of Offenders Act to the convict-petitioners. 11. Learned Addl. No reason has been assigned by the Courts below as to why the benefit of those provisions has not been given and hence prayed for giving the benefit of Probation of Offenders Act to the convict-petitioners. 11. Learned Addl. P.P. has submitted that prosecution has nothing to say if the benefit of Section 360 of Cr.P.C. or Section 4 of the Probation of Offenders Act is extended to the convict-petitioners. 12. Admittedly, the convict-petitioners were charged for commission of minor offence punishable under Sections 341 and 323 read with Section 34 of IPC. Learned Chief Judicial Magistrate while found the convict-petitioners guilty of the offence and while awarding punishment, in Para 11 of the judgment, refused the benefit of Section 360 of Cr.P.C. simply stating that considering the nature of the offence he was not inclined to allow the benefit of Section 360 of Cr.P.C. Para 11 of the judgment reads as follows: “11. Considering the nature of offence, I am not inclined to allow any benefit under section 360 Cr.P.C. to the accused persons.” No observation has been made as to why benefit of Probation of Offenders Act has not been given. 13. The appellate Court i.e. learned Addl. Sessions Judge assigned no reason at all as to why the benefit of Section 360 of Cr.P.C. or Section 4 of the Probation of the Offenders Act was not given. 14. Let us have a glimpse to the provisions of Section 360 and 361 of Cr.P.C. as well as Section 4 of the Probation of Offenders Act. 15. Sessions Judge assigned no reason at all as to why the benefit of Section 360 of Cr.P.C. or Section 4 of the Probation of the Offenders Act was not given. 14. Let us have a glimpse to the provisions of Section 360 and 361 of Cr.P.C. as well as Section 4 of the Probation of Offenders Act. 15. Section 360 of the Code of Criminal Procedure prescribes as follows: “360.Ordertoreleaseonprobationofgoodconductorafteradmonition.(1) When any person not under twentyone 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 twentyone 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 meantime to keep the peace and be of good behavior: 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 subsection (2). (2) Where proceedings are submitted to a Magistrate of the first class as provided by subsection (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken. (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, the 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. (4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under the subsection inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted. (6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section. (7) The Court, before directing the release of an offender under subsection (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. (7) The Court, before directing the release of an offender under subsection (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehensions. (9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence. (10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958, (20 of 1958) or 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.” The above provision clearly contemplates that when a person over the age of 21 years is convicted of an offence punishable with fine only or with imprisonment for a term of 7 (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 in spite 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. The Court also instead of sentencing the accused may release him after admonition. This provision has not been applied by the trial Court as well as the appellate Court and no reason has been assigned. 16. The Court also instead of sentencing the accused may release him after admonition. This provision has not been applied by the trial Court as well as the appellate Court and no reason has been assigned. 16. Section 361 of Cr.P.C. prescribes thus: “361.Specialreasonstoberecordedincertaincases.—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.” The above provision stipulates that the Courts below would deal with the convict-petitioners either under Section 360 of Cr.P.C. or under the provisions of the Probation of Offenders Act, 1958. While the Courts below did not do so, were bound to record special reasons for having not doing so but no reason has been assigned and therefore, the Courts below committed a serious miscarriage of justice. 17. Section 4 of the Probation of Offenders Act prescribes as follows: “4. Power of court to release certain offenders on probation of good conduct. 17. Section 4 of the Probation of Offenders Act prescribes 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 subsection (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 subsection (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.” A bare reading of the above provisions makes it clear 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 under the terms and conditions which may be laid down as per the provisions of the Act. Before passing any order, granting probation, the Court shall obtain the report of the Probation Officer in terms of Section 4 of the Act. Here in this case, the Courts below ignored the provisions and also assigned no reason as to why Section 4 of the Probation of Offenders Act has not been followed. 18. Every offence is an offence against the State. It is the general principle of criminal law that an offender shall be punished for commission of an offence as prescribed by law. There cannot be any deviation from this general principle. An offender should suffer punishment for the sake of the society as otherwise there shall be lawlessness in the society as a whole. The punishment must be according to law. Section 360 of Cr.P.C. and the provisions of the Probation of Offenders Act has been made with an ultimate object of reformation of the offenders specially, the youthful offenders. The criminal Courts, therefore, should not be oblivious to those provisions while inflicting punishment in a given case. The punishment must be according to law. Section 360 of Cr.P.C. and the provisions of the Probation of Offenders Act has been made with an ultimate object of reformation of the offenders specially, the youthful offenders. The criminal Courts, therefore, should not be oblivious to those provisions while inflicting punishment in a given case. In appropriate cases specially in cases of minor offence, the criminal Courts must apply the benevolent provisions of Section 360 of Cr.P.C. or that of Section 4 of the Probation of Offenders Act. 19. While the accused persons were found guilty of committing minor offence under Section 323 read with Section 34 of IPC, the Courts below would give benefit of Section 360 of Cr.P.C. or Section 4 of the Probation of Offenders Act to the convict-petitioners. Section 361 clearly stipulates that special reasons has to be recorded by the Court in case benefit of Section 360 of Cr.P.C. or the benefit of Probation of Offenders Act is refused to an accused in a given case. 20. The Supreme Court in the case of Bishnu Deo Shaw V. State of West Bengal reported in 1979 CRI.L.J.841 in paragraph 25 of the judgment has observed thus: “25.Apart from Section 354(3), there is another provision in the Code which also uses the significant expression 'special reasons'. It is Section 361. Section 360 of the 1973 code reenacts, in substance, Section 562 of the 1898 Code and provides for the release on probation of good conduct or after admonition any person not under twenty one years of age who is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under twenty one years of age or any women who is convicted of an offence not punishable with death or imprisonment of life, if no previous offence is proved against the offender, and if it appears to the Court, having regard 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 or after admonition. If the Court refrains from dealing with an offender under Section 360 or under the provisions of the Probation of Offenders Act, or any other law for the treatment, training, or rehabilitation of youthful offenders, where the Court could have done so, Section 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the 'special reasons' for not doing so. Section 361 thus casts a duty upon the Court to apply the provisions of S.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 S. 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 Sec. 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming 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.” 21. A Single Bench of this Court (the Bench presided over by the Hon’ble Chief Justice) in the case of Mithun Debnath V. State of Tripura in Criminal Revision Petition No. 31 of 2011 in para 22 has observed – “22. 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. 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. In the present case, there is nothing in the record to show that the petitioners earlier committed any offence or that their character and antecedents are not good. The chargesheet filed by police which is found in the lower Court record shows that the petitioner Akbar Khan was aged about 50 years and there was nothing adverse report against him. The petitioner Achad Khan was aged about 19 years and against him also there was nothing adverse. The petitioner Gulab Khan was aged about 35 years and he surrendered before the Court and there was nothing adverse against him. The petitioner Ayub Khan was aged about 37 years and nothing adverse against him. The conduct of the petitioners so far the case record is concerned contains nothing adverse to disentitle them the benefit of Section 360 of Cr.P.C. or Section 4 of the Probation of Offenders Act. The Courts below was empowered to enquire about the nature, character, habit and antecedents of the convict-petitioners in terms of Section 4 of the Probation of Offenders Act. Admittedly, the Courts below did nothing of the sort and simply inflicted punishment on the petitioners for minor offences punishable under Sections 323 and 341 read with Section 34 of IPC. 23. It is apparent that learned Chief Judicial Magistrate and learned Addl. Admittedly, the Courts below did nothing of the sort and simply inflicted punishment on the petitioners for minor offences punishable under Sections 323 and 341 read with Section 34 of IPC. 23. It is apparent that learned Chief Judicial Magistrate and learned Addl. Sessions Judge ignored the provisions of Section 361 of Cr.P.C. and failed to discharge their duty to invoke the provisions of Section 360 of Cr.P.C. or Section 4 of the Probation of Offenders Act. 24. The scope of Section 4 of the Probation of Offenders Act is much wider than that of Section 360 of Cr.P.C. The Supreme Court in the case of Gulzar V. State of Madhya Pradesh, reported in (2007) 1 SCC 619 while considering the applicability of Section 360 of Cr.P.C. and Section 4 of the Probation of Offenders Act, in paras 11, 12 and 13 of the judgment has held thus: “11. Where the provisions of the P.O. Act are applicable the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, who gave birth to the P.O. 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 P.O. Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative elevation of the provisions of the P.O. Act are further noticed in subsection (10) of Section 360 of the Code which makes it clear that nothing in the said Section shall affect the provisions of the P.O. Act. Those provisions have a paramountcy 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 seven 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 P.O. Act is much wider. The scope of Section 4 of the P.O. 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 role for Probation Officers in assisting the Courts in relation to supervision and other matters while the P.O. Act does make such a provision. While Section 12 of the P.O. Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the P.O. 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 coexist at the same time in the same area. Such coexistence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the P.O. 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, the provisions of Section 360 of the Code are wholly inapplicable. 13. Enforcement of the Probation Act in some particular area excludes the applicability of the provisions of Sections 360 and 361 of the Code in that area.” 25. In view of the legal position, enunciated by the Apex Court in the case of Gulzar (supra) as stated hereinabove, I think in the given facts of this case the convict-petitioners may be given the benefit of Section 4 of Probation of Offenders Act. But before giving such benefit I think the nature, character, habit and antecedent of the convict-petitioners should be enquired by the Probation Officer of Kailashahar, North Tripura, now Unokoti District and the report of the Probation Officer should be taken into consideration. 26. Accordingly, the Probation Officer of Kailashahar, now Unokoti District is directed to enquire into the nature, character, habit and antecedent of the convict-petitioners Md. Akbar Khan, Md. Achad Khan, Md. Ayub Khan and Md. Gulab Khan and submit a report in writing on or before 06.04.2015. 27. Registry is directed to communicate the order to the concerned Probation Officer for compliance of the order. Akbar Khan, Md. Achad Khan, Md. Ayub Khan and Md. Gulab Khan and submit a report in writing on or before 06.04.2015. 27. Registry is directed to communicate the order to the concerned Probation Officer for compliance of the order. 28. List the matter on 06.04.2015 for further order.