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2020 DIGILAW 311 (UTT)

Subhash Kashyap v. State Of Uttarakhand

2020-08-20

R.C.KHULBE

body2020
JUDGMENT R.C. Khulbe, J. - This criminal revision is preferred u/s 397/401 Cr.P.C. against the judgment and order dated 30.9.2011 passed by First Additional Civil Judge/J.M. U.S. Nagar in Crl. Case No.12 of 2011, State v. Subhash Kashyap, whereby the learned Judge convicted the revisionist u/s 411 IPC and awarded one year R.I. with fine of Rs.1,000/- as well as the order dated 22.11.2011 passed by learned Sessions Judge, U.S. Nagar in Crl. Appeal No.153 of 2011, Subhash Kashyap v. State, whereby the learned Sessions Judge dismissed the appeal and affirmed the lower court order. 2. Facts, to the limited extent necessary, are that PW1 Pankaj Kumar Juneja submitted an information Ex.Ka-1 on 19.09.2010 with Kotwali Kichha, U.S. Nagar. On the basis of said information, Chick FIR Ex.Ka-6 was lodged on the very same day at 18:30 hours u/s 379 IPC against the unknown person. After the investigation, charge-sheet Ex.Ka-5 was filed u/s 379/411 IPC against the revisionist. Accordingly, cognizance was taken on 22.11.2011. After providing necessary copies to the accused-revisionist as required u/s 207 Cr.P.C., charges were framed against the revisionist u/s 379/411 IPC. He pleaded not guilty and claimed to be tried. 3. On this, the prosecution got examined PW1 Pankaj Juneja (informant), PW2 S.I. Amar Chandra Sharma, PW3 B.S. Bisht, PW4 Pramod Singh Rautela, PW5 Manoj Kohli and PW6 Manmohan Singh( Investigating Officer). 4. Oral and documentary evidence was put to the revisionist u/s 313 Cr.P.C., in reply to which, he alleged the same to be false but no evidence in defence was adduced. 5. After hearing the parties the Trial Court found that the prosecution has successfully proved the charge of offence 411 IPC against the revisionist. He was convicted. After hearing on sentence, he was sentenced as mentioned in paragraph no.1 of this judgment. Aggrieved by the said judgment dated 30.09.2011, the revisionist preferred Criminal Appeal No.153 of 2011, before the Sessions Judge, U.S. Nagar. Learned Sessions Judge, after hearing the parties, dismissed the appeal and affirmed the order passed by the Trial Court. Aggrieved by both the orders, this revision is preferred. 6. This Court has gone through the statements of witnesses namely examined PW1 Pankaj Juneja (informant), PW2 S.I. Amar Chandra Sharma, PW3 B.S. Bisht, PW4 Pramod Singh Rautela, PW5 Manoj Kohli and PW6 Manmohan Singh( Investigating Officer). The testimony of the above witnesses is not only natural but also trustworthy. Aggrieved by both the orders, this revision is preferred. 6. This Court has gone through the statements of witnesses namely examined PW1 Pankaj Juneja (informant), PW2 S.I. Amar Chandra Sharma, PW3 B.S. Bisht, PW4 Pramod Singh Rautela, PW5 Manoj Kohli and PW6 Manmohan Singh( Investigating Officer). The testimony of the above witnesses is not only natural but also trustworthy. All those witnesses have been subjected to lengthy crossexamination during trial but nothing has come out in their evidence which may create any reasonable doubt. In the above circumstances, the Trial Court has rightly held that the prosecution has successfully proved the charge against the revisionist u/s 411 IPC beyond reasonable doubt. The conviction recorded by the Trial Court against the revisionist is based on material evidence. 7. Learned Counsel appearing for the revisionist fairly argued before the Court that he does not want to argue the case on merits because the finding recorded by the Trial Court is based on evidence, and there is no illegality in the impugned finding. But the matter relates to the year 2010, and only one motorcycle was recovered from his possession, he was not involved in the theft, he has already served more than one month during investigation and trial; he is the only bread earner of his family, there is no criminal history against him, and approximately 10 years have elapsed; the benefit of Probation of First Offenders Act may be given to the revisionist. 8. Learned State Counsel fairly submitted that as per the evidence, the revisionist was not involved in the theft and there is no criminal history received against the revisionist, looking to the nature of offence, the benefit of First Offenders Act can be given. 9. In this regard, the Hon'ble Apex Court in the case of "Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola",2001 SCC(Cri) 2 897, in paragraph no.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." 10. 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." 10. Section 4 of the Probation of Offenders Act, 1958 read as under: "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 5 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." 11. 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. 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. 12. A careful reading of Section 4 of the Act would reveal that if the 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. 13. In the present case the revisionist is the first-time offender. The incident seems to have taken place a long ago. 14. Therefore, considering the provisions of the Probation of Offenders Act, 1958, no useful purpose would to sentence him with fine. Rather, in the opinion of the Court, he should be released on probation in order to reform himself. 15. The impugned judgments and orders passed by the trial court and the appellate Court below are hereby affirmed and the present revision, thus, stands partly allowed. The conviction part of the revisionists, under Section 411 IPC, is left intact. However, as far the sentence part is concerned, it is directed that the revisionist shall be released on probation for a period of one year on furnishing a personal bond to the satisfaction of the concerned Trial Court with one surety. The concerned Magistrate shall be at liberty to impose such conditions while executing the bond which he feels fit in accordance with the law. It goes without saying that if accused/revisionist fail to observe good conduct and behaviour during probation or is found violating any condition, to be imposed; the Court concerned shall be at liberty to cancel the bonds and to proceed with the matter in accordance with law. The revisionist shall appear before the Trial Court on or before 30.09.2020 for compliance. 16. Let a copy of this judgment be sent forthwith to the learned Trial Court for information/compliance. 17. All pending applications stand disposed of.