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2020 DIGILAW 223 (RAJ)

Devi Singh v. State of Rajasthan

2020-01-23

SANDEEP MEHTA

body2020
JUDGMENT Sandeep Mehta, J. - The appellant herein has been convicted and sentenced as below vide the judgment dated 23.07.1993 passed by learned Addl. District & Sessions Judge, Barmer, in Sessions Case No.14/92: Offence Under Section Imprisonment Fine Sentence in default of fine 458 IPC 3 years' R.I. Rs.1,000/- 3 months' SI 323 IPC 3 months' R.I. Rs.500/- 2 months' SI Both the sentences were ordered to run concurrently. 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374 (2) Cr.P.C. 3. The matter had been heard and judgment was reserved on 09.01.2020. After the judgment had been reserved, Shri Pritam Solanki, Advocate representing the accused-appellant urged that the accused-appellant and the complainant have settled their disputes and a compromise has been arrived at between them. Thus, the case was listed in the 'to be mentioned' category whereafter a compromise application has been filed by the accused-appellant and the complainant which has been verified by the Registrar (Judicial), Rajasthan High Court, Jodhpur. Shri Pritam Solanki, Advocate representing the appellant urged that as the parties have arrived at compromise, the accused appellant deserves to be acquitted of both the charge. 4. The offence under Section 323 IPC is compoundable without permission of the Court. Thus, the compromise application is accepted to this extent and, while compounding the offence, the accused-appellant is acquitted of the charge under Section 323 IPC. 5. It may be stated here that the offence under Section 458 IPC for which the appellant has been charged, is not compoundable even with the permission of the Court as per the table appended to Section 320 Cr.P.C. Thus, the offence cannot be permitted to be compounded. However, keeping in view the following principles enunciated by Hon'ble the Supreme Court in the case of Mohd. Hashim vs State of UP,2017 1 SCC 198 , since the offence under Section 458 IPC does not prescribe any minimum punishment, there is no restriction against the grant of probation to the accused appellant by virtue of Section 4 of the Probation of Offenders Act:- "25. At this juncture, learned counsel for the respondents would submit that no arguments on merits were advanced before the appellate court except seeking release under the PO Act. We have made it clear that there is no minimum sentence, and hence, the provisions of the PO Act would apply. At this juncture, learned counsel for the respondents would submit that no arguments on merits were advanced before the appellate court except seeking release under the PO Act. We have made it clear that there is no minimum sentence, and hence, the provisions of the PO Act would apply. We have also opined that the court has to be guided by the provisions of the PO Act and the precedents of this Court. Regard being had to the facts and circumstances in entirety, we are also inclined to accept the submission of the learned counsel for the respondents that it will be open for them to raise all points before the appellate court on merits including seeking release under the PO Act." 6. Thus, the appeal deserves to be partly allowed. While affirming the conviction of the appellant, as recorded by the trial court for the offence under Section 458 IPC by the impugned judgment dated 23.07.1993, instead of sentencing him immediately, the accused-appellant is extended the benefit of probation under Section 4 of the Probation of Offenders Act, upon his furnishing a personal bond in the sum of Rs.50,000/- and a surety in the like amount to the satisfaction of the trial court making him bound to maintain peace and be of a good behaviour for a period of two years and in case of any breach, to receive the sentences as awarded by the trial court. 7. The appeal is partly allowed in these terms. Record be returned to the trial court forthwith.