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2022 DIGILAW 1128 (RAJ)

Shoukat v. State of Rajasthan

2022-04-07

PUSHPENDRA SINGH BHATI

body2022
ORDER : 1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned. 2. This Criminal Appeal has been preferred under Section 374(2) Cr.P.C. praying for the following reliefs:- “It is, therefore, prayed that this Hon’ble Court will be pleased to send for the record of the lower court, peruse the same and after perusal, quash the conviction and sentences passed against the appellants, acquit them or pass any other orders that this Hon’ble court deems fit and proper.” 3. The matter pertains to an incident that occurred in the year 1986 and the present appeal has been pending since 1993. 4. Vide impugned judgment dated 30.09.1993, the learned Additional Sessions Judge, Sojat, Pali passed in Sessions Case No.44/92 (36/1987) though, while extending the benefit of doubt, acquitted the accused-appellants for the offence under Section 376 IPC, but convicted them for the offence under Section 366 IPC and sentenced them to undergo two years simple imprisonment, alongwith a fine of Rs.500/-, default in payment of which they were to further undergo one month simple imprisonment. The offence under Section 366 IPC, as per the Indian Penal Code, is punishable under Section 363 IPC, with imprisonment, for a term may extend to seven years. 5. At the outset, learned counsel for the accused-appellants submits that appellant No.3-Shoukat s/o Mohd. Khan has already expired. 6. Learned counsel for the accused-appellants further submits that at the time of occurrence of the alleged incident, the accused-appellants; Shoukat was 171/2 years and Sikandar and the other Shoukat were below 18 years of age, on the date of the commission of the alleged incident, and that neither of them has any criminal antecedents to their discredit. 7. Learned counsel for the accused-appellants further submits that the accused-appellants were ordered to be released by this Hon’ble Court vide order dated 26.10.1993, passed in S.B. Criminal Misc. Bail Application No.413/1993, and thus, they are on bail. 8. Learned counsel for the accused-appellants however, makes a limited prayer that the surviving accused-appellants No.1 and 2 may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’). Learned counsel also referred to Section 6 of the Act. Bail Application No.413/1993, and thus, they are on bail. 8. Learned counsel for the accused-appellants however, makes a limited prayer that the surviving accused-appellants No.1 and 2 may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’). Learned counsel also referred to Section 6 of the Act. Sections 4 & 6 of the Act 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 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)… (4)… (5)... ” “6. (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)… (4)… (5)... ” “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) 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.” 9. On the other hand, learned Public Prosecutor opposes the appeal and submits that looking to the overall facts and circumstances of the case and the well reasoned speaking order passed by the learned court below, the accused-appellants are not entitled for any indulgence by this Court. 10. Heard learned counsel for the parties as well as perused the record of the case. 11. In Jugal Kishore Prasad Vs. State of Bihar, (1972) 2 SCC 633 , the Hon’ble Apex Court observed as under : “… Before, however, the benefit of the Act can be invoked, it has to be shown that the convicted person even though less than 21 years of age, is not guilty of an offence punishable with imprisonment for life. This is clear from the language of Section 6 of the Act.” 12. In Lakhvir Singh & Ors. This is clear from the language of Section 6 of the Act.” 12. In Lakhvir Singh & Ors. The State of Punjab & Ors., (2021) 2 SCC 763 , the Hon’ble Apex Court, while reiterating the decision rendered in Masarullah v. State of Tamil Nadu, (1982) 3 SCC 458 and Ishar Das v. State of Punjab, (1973) 2 SCC 65 , held as under : "… In Masarullah v. State of Tamil Nadu, (1982) 3 SCC 458 there are observations to the effect that “in case of an offender under the age of 21 years on the date of commission of the offence, the Court is expected ordinarily to give benefit of the provisions of the Act and there is an embargo on the power of the Court to award sentence unless the Court considers otherwise, 'having regard to the circumstances of the case including nature of the offence and the character of the offender', and reasons for awarding sentence have to be recorded… … The rationale is that the underlying purpose of the provision being reformative – Section 6 being a special provision enacted to prevent the confinement of young persons under 21 years of age in jail, to protect them from the pernicious influence of hardened criminals... … while Section 6 provides that a court “must not” sentence a person under the age of 21 years to imprisonment unless sufficient reasons for the same are recorded, based on due consideration of the probation officer’s report. The relevant aspects while giving benefit under Section 6 of the Act are: the nature of offence, the character of the offender, and the surrounding circumstances as recorded in the probation officer’s report...” 13. In Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC 198 , while reiterating the ratio decidendi laid down in Dalbir Singh Vs. State of Haryana, (2000) 5 SCC 82 , the Hon’ble Apex Court observed as under : “… The Court has further opined that though the discretion as been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient...” 14. This Court is conscious of the fact that the accused-appellants were below 21 years of age at the time of commission of the alleged offence, as is reflected from the record of the case and the offence charged is under Section 366 IPC, as mentioned above, which is punishable with an imprisonment, which may extend to seven years, which clearly makes the precedent law of Jugal Kishore (supra) and Lakhvir Singh (supra) applicable in the present case. 14.1 Further, there is no material on record that the accused-appellants No.1 and 2 have any criminal antecedents. Thus, the surviving accused-appellants No.1 and 2 are entitled to the benefit as per the mandatory requirement of the Act. 14.2 Thus, this Court, after taking into due consideration the legislative intent of the Act and the decisions rendered by the Hon’ble Court in Mohd. Hashim (supra), deems it appropriate to extend the benefit of the Act to the surviving accused-appellants No.1 and 2. 15. Resultantly, the present appeal is partly allowed. While maintaining the conviction of the surviving accused-appellants No.1 and 2 herein for the offence under Section 366 IPC, as recorded by the learned Court below in the impugned judgment, this Court interferes only with the sentence part of the said judgment, and directs that the appellants No.1 and 2 shall be released on probation, under Section 4 (while considering Section 6) of the Act, upon each of them furnishing a personal bond in the sum of Rs.50,000/- and two sureties in the sum of Rs.25,000/- each to the satisfaction of the learned trial court with a further undertaking that they shall maintain peace and good behaviour for a period of two years and shall not repeat the offence. The appellants No.1 and 2 are on bail. They need not surrender. Their bail bonds stand discharged accordingly. All pending applications stand disposed of. Record of the learned court below be sent back forthwith.