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Gujarat High Court · body

2016 DIGILAW 2106 (GUJ)

State of Gujarat v. Ayub Ganibhai Odiya

2016-10-06

ANANT S.DAVE, B.N.KARIA

body2016
JUDGMENT : B.N. KARIA, J. 1. The present appeal is preferred by the appellant-State of Gujarat under Section 377 of the Code of Criminal Procedure, 1973, against the order of granting the benefit to the accused under the Probation of Offenders Act and under Section 360 of the Cr.P.C, passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Rajkot dated 31.03.2005 in Sessions Case No. 21 of 2003. 2. The facts leading to filing of the present appeal are as under :- 2.1 On 02.10.1998 at about 21:00 hrs, when the complainant victim girl was present in her room No. 2/15 situated at New Thorala Street, the accused had entered into the room armed with knife and started abusing and beating up the victim. Thereafter, he tried to have sexual intercourse with the victim -complainant forcibly and thereby he committed offences alleged and charged against him. 2.2 Initially, on 02.10.1998, a complaint in respect of the aforesaid incident was lodged with ‘B’ Division Police Station, Rajkot, for the offences punishable under Section 452, 54, 509, 504, 323, and 511 of Indian Penal Code and also under Section 135 of the Bombay Police Act. The Investigating Officer on 03.10.1998, submitted his report to add section 376 and 511 of IPC in the FIR to the learned Judicial Magistrate First Class, Rajkot. Thereafter, on completion of an investigation, the ASI, ‘B’ Division Police Station, Rajkot, submitted charge sheet before the learned JMFC, Rajkot. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately trial was initiated. 2.3 The learned Sessions Judge, Rajkot as per Section 228(1)(b) of the Cr.P.C framed the charges against the accused-respondent and read over to the accused, to which the accused pleaded ‘not guilty’ and claimed to be tried. 3. To prove its case, the prosecution has examined 8 oral witnesses as well as produced 8 documentary evidences. 4. At the end of the trial, the Court below recorded further statement of the accused under Section 313 of the Cr.P.C, and thereafter, passed the impugned judgment and order, which has led to the filing of the present appeal. 5. Heard learned APP Ms. Moxa Thakker for the appellant and Mr. Pratik Barot, learned advocate for the respondent. 6. It was argued by Ms. 5. Heard learned APP Ms. Moxa Thakker for the appellant and Mr. Pratik Barot, learned advocate for the respondent. 6. It was argued by Ms. Moxa Thakker, learned APP for the appellant that the judgment and order passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Rajkot, is completely contrary to law and evidence on record. That Section 4 of the Probation of Offenders Act as well as Section 360 of the Cr.P.C cannot be applied together. That, both the provision could not be applied at the same time in the same area. That, prosecution has clearly proved that the present accused, who was residing near the room of the prosecutrix was entered in the room of the prosecutrix on 02.11.1998 at about 09:00 p.m. and caught the hair of the prosecutrix and upper hand, and she was dragged from the room saying that he wants to take the prosecutrix with him. That, people were gathered and accused had left the place of offence. That, intention of the accused entering in the house of prosecutrix was clearly proved. Sister of the prosecutrix was present and she intervened while prosecutrix was dragged by the accused. That, kick blows were inflicted on the abdominal part of the sister, due to which premature delivery of seven months was done. That, the accused had committed the offence of outraging the modesty of the prosecutrix, however, without considering the facts and granting benefit under the Probation of Offenders Act, the learned trial judge has committed grave error. She has further argued that the crime was against the woman and child like sexual harassment, outraging modesty. Hence, the benefit under the Probation of Offenders Act for offence under Section 360 of the Cr.P.C can not be granted to the accused. That, learned trial judge has not called for the report of the Probation Officer, which is mandatory as per the law before granting benefit under Section 360 of Cr.P.C and / or Section 4 of the Probation of Offenders Act. That, however, number of offences were registered against the accused and placed on record, no benefit under the above said provision can be granted to the accused. That, it was the duty of the Court to take into consideration the nature of offence committed by the accused. That, however, number of offences were registered against the accused and placed on record, no benefit under the above said provision can be granted to the accused. That, it was the duty of the Court to take into consideration the nature of offence committed by the accused. The evidence of the prosecutrix was corroborated with the evidence of her mother PW-2 Kanchanben (Exh.19) and PW-3 i.e. Meenaben-sister of the prosecutrix. That, ingredients under Section 354 of the IPC was clearly established by the prosecution. That, the learned Sessions Judge has taken very lenient view in granting benefit under the Probation of Offenders Act in a lenient manner without calling report from the Probation Officer and without considering the past antecedents. It was, therefore, requested by her to quash and set aside the judgment and order passed by the learned trial judge and punish the accused for the offences for which he was acquitted. 7. On the other side, Mr. Pratik Barot learned advocate for the respondent-accused strongly argued that no case was proved against the accused by the prosecution under Section 354 of IPC. That, ingredients of proving the offence under Section 354 outraging modesty of women would be material. Learned advocate has drawn the attention of the court of the testimony of prosecution witness Varshaben Nandram Baroliya (Exh.15). It was argued by learned advocate that she has not identified the knife in the hands of the accused and has also drawn the attention to the testimony of the Investigating Officer at Exh. 33, particularly his cross-examination. He further argued that there was no intention on the part of the accused to commit the alleged offence of outraging the modesty of the prosecutrix. That, intention of the accused must be proved by the prosecution well and connect him under the offences as charge-sheeted. That, conviction awarded to the accused under section 354 of IPC should be quashed and set aside. That there was no previous conviction awarded by any criminal Court to the accused. That granting benefit to the accused under Section 4 of the Probation of Offenders Act and / or under Section 360 of the Cr.P.C can not be disturbed by the appellate court. That, the learned trial judge has exercised its powers in favour of the accused in an appropriate manner and as per the law. Therefore, it was requested by him to dismiss the appeal. 8. That, the learned trial judge has exercised its powers in favour of the accused in an appropriate manner and as per the law. Therefore, it was requested by him to dismiss the appeal. 8. Having considered the facts of the case, submissions made by learned advocate/APP of the respective parties, the only question which requires to be decided by this Court, in the present appeal is, whether the benefit granted to the accused under section 360 of the Cr.P.C r/w. Section 4 of the Probation of Offender’s Act is permissible or not. The present appeal is preferred by the appellant under Section 377 of the Code of Criminal Procedure, 1973, and the same grievance is raised by the appellant against the judgment and order passed by the learned trial judge in Sessions Case No. 21 of 2003 granting benefit under the Probation of Offenders Act and Section 360 of the Cr.P.C together. To decide the issue involved in the present appeal, let us refer section 4 of the Probation of Offenders Act, 1958, which is provided as under :- “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 probation 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.” 9. Under Section 235 (2) of Cr.P.C the accused is convicted by the Trial Court, it is mandatory for the Court, unless the learned judge proceeds in accordance with the provisions of section 360, to hear the accused on the question of sentence, and then pass sentence on him according to law. Under Section 235 (2) of Cr.P.C the accused is convicted by the Trial Court, it is mandatory for the Court, unless the learned judge proceeds in accordance with the provisions of section 360, to hear the accused on the question of sentence, and then pass sentence on him according to law. If the judge does not proceed under Section 360 of Cr.P.C as provided under Section 361 of Cr.P.C, the judge has to give special reasons, why he has not followed Section 360 of Cr.P.C. Therefore, it can be said that section 360(1) of Cr.P.C mandates the Court to proceed under Section 360 of Cr.P.C when he is of the opinion that accused is to be convicted. Otherwise, he has to pass special reasons. It appears from the findings concluded by the learned judge that the learned judge has followed the required provisions under Cr.P.C while giving benefit under Section 360 of Cr.P.C. It also appears from the judgment and order challenged before this Court that the learned judge after considering the evidence produced on record by the prosecution was of the opinion that it was a fit case in which the Court will follow the provisions of Section 360 of Cr.P.C. It is pertinent to note that accused was acquitted for the offense punishable under Sections 376, 511, 504 of IPC. Instead of sentencing the accused at once for any punishment for the above said offences, he was ordered to be released on bond of Rs.5,000/- for a period of two years with a solvent surety of like amount under Section 360(1) of Cr.P.C r/w. Section 4 of the Probation of Offenders Act, 1958. He was also directed to receive sentence when called upon during such period and in the meantime he was directed to keep the peace and good behaviour. The Probation Officer was also directed to make supervision of the accused for a period of one year, and therefore, he was placed under the supervision of the Probation Officer for a period of one year. The activities of the accused was to be supervised by the Probation Officer and was directed to submit his report every three months to the Sessions Court. This order was passed on 31.03.2005 by the learned Additional Sessions Judge, 2nd Fast Track Court, Rajkot. 10. The activities of the accused was to be supervised by the Probation Officer and was directed to submit his report every three months to the Sessions Court. This order was passed on 31.03.2005 by the learned Additional Sessions Judge, 2nd Fast Track Court, Rajkot. 10. Here, this Court would like to refer Section 360(1) of the Code of criminal Procedure, 1973, which reads as under :- “ 360 (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 meantime 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) 2. XXX XXX XXX XXX 3. XXX XXX XXX XXX 4. XXX XXX XXX XXX 5. XXX XXX XXX XXX 6. XXX XXX XXX XXX 7. XXX XXX XXX XXX 8. XXX XXX XXX XXX 9. XXX XXX XXX XXX 10. XXX XXX XXX XXX 3. XXX XXX XXX XXX 4. XXX XXX XXX XXX 5. XXX XXX XXX XXX 6. XXX XXX XXX XXX 7. XXX XXX XXX XXX 8. XXX XXX XXX XXX 9. XXX XXX XXX XXX 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.” 11. This section is a piece of beneficient legislation. It enables the Court, under certain circumstances to release the accused, who has been convicted, on probation of good conduct. It applies only to first time offenders, who are entitled to the indulgence on the source of their age, character or antecedents and to the circumstances in which the offence is committed. The object of this section is to avoid sending the first time offender to prison for an offence, which is not of a serious character and thereby running the risk of turning him into a regular criminal. As held in the case reported in AIR 2000 SC 3622 and in the case of Chandreshwar Sharma vs. State of Bihar reported in 2000 (9) SCC 245 . It is held that the Court is obliged to look into the provisions of the Probation of Offenders Act and Section 360 Cr.P.C while dealing with conviction of the accused persons. Section 360 of Cr.P.C is a wider in scope than the Probation of Offenders Act. Sub section 1 is expressed in general language. It applies to a person convicted of an offence punishable with fine only or imprisonment of not more than a certain period. There is no exclusion of involvement of Probation Act in the State of Gujarat for applicability of the provisions of Sections 360, 360(1) of the Cr.P.C. The provisions of this section is inapplicable in a State where the Probation of Offenders Act, 1958, has been brought into force. Section 360 (10) is very clear that while exercising powers under this section would not affect the provisions of Probation of Offenders Act, 1958, and therefore, the arguments advanced by the learned APP Ms. Moxa Thakker on the issue that simultaneously the powers cannot be exercised by the learned trial judge is without any substance or without any legal force. Learned APP Ms. Moxa Thakker on the issue that simultaneously the powers cannot be exercised by the learned trial judge is without any substance or without any legal force. Learned APP Ms. Moxa Thakker, in respect of her arguments place her reliance in the case of State of Gujarat Vs Rohitbhai Vaghri & Ors., reported in 2015(03) GLR pg No. 2623, (2015) 13 SCC pg 444 in the case of State through Central Bureau of Investigation, Anti Corruption Branch, Chandigarh vs. Sanjiv Bhalla & Anr., (2013)10 SCC pg 31 in the case of Azhar Ali vs. State of West Bengal, in which Hon’ble High Court of Gujarat has denied to give benefit of Probation under Section 4 of the Probation of Offenders Act, 1958 or under Section 360 of Cr.P.C in which the accused was convicted under Section 326 of IPC. In case before the Supreme Court in 2015 (13) SCC 444 the accused was convicted under Prevention of Corruption Act, 1988 and was released on Probation under Section 4 of the Probation of Offenders Act by the High Court. Considering the peculiar facts of this case, that offence was committed in the year of 1996, the High Court was pleased to release the accused on probation considering 21 days imprisonment undergone and mental agony suffered by the accused. He was discharged for completing probation period and 18 years time was lapsed in between the date of offence to hearing before the Supreme Court. Considering this lapse of time, release of the accused on probation was held justified by the Supreme Court. In this case, the accused was involved in an offence under Section 420 of IPC r/w. Section 120(B) and under Section 13(1)(d) r/w. Section 13(2) of the Prevention of Corruption Act. In another case Azhar Ali vs. State of West Bengal, the accused was involved under section 354 of IPC. His age was about 16 years at the time of commission of offence and found guilty of outraging modesty of woman under Section 354 of IPC. The Supreme Court held that benefit of 1958 Act cannot be extended to the accused considering the heinous crime that he had committed and social conditions prevailing in the society. Here the learned trial judge has given the benefit of probation to the accused considering his age, antecedents etc. The Supreme Court held that benefit of 1958 Act cannot be extended to the accused considering the heinous crime that he had committed and social conditions prevailing in the society. Here the learned trial judge has given the benefit of probation to the accused considering his age, antecedents etc. Prosecution has not produced any documentary evidence, convicting the accused in any other offence by the Court of law. Of course, he is involved in many criminal cases as per the statement. But, it appears that, in not a single case he was convicted. Mere involvement in a criminal case of the accused would not prevent him in getting the benefit of Section 4 of the Probation of Offenders Act, 1958 or under Section 360 of Cr.P.C. The alleged offence was committed on 02.10.1998 and the trial was completed against the accused on 31.03.2005 and judgment was delivered on 31.03.2005. This appeal was preferred by the State of Gujarat on 18.04.2006 and hearing was taken place before this Court in October, 2016. Considering the lapse of time from committing the offence in 1998 and hearing before this Court, benefit granted to the accused of Probation by the learned trial judge would not fit to be disturbed by this Court. The learned trial judge has elaborately discussed the evidence of the prosecution. There is no infirmity or perversity even in the judgment and order rendered by the learned trial judge. Hence, for the aforesaid reasons and discussion, this Court is of the view that considering the peculiar facts and circumstances of this case and lapse of time passed, this Court would not like to interfere with the judgment and order granting benefit of Probation of Offenders Act under Section 4 and under Section 360 of Cr.P.C. Resultantly, the present appeal fails on merits and is dismissed accordingly. Appeal dismissed.