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2022 DIGILAW 1196 (RAJ)

Damaram @ Damodarlal v. State Of Rajasthan

2022-04-13

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 Cr.P.C. praying for the following reliefs:- "It is, therefore, prayed that the appeal be kindly accepted, the conviction and sentence passed by the lower court be set aside and the appellant be acquitted." 3. The matter pertains to an incident that occurred in the year 1990 and the present appeal has been pending since 1993. 4. Vide impugned judgment dated 29.09.1993 the learned Additional Sessions Judge, Sojat in Sessions Case No.118/92 (35/90) convicted the appellant for the offences under Sections 2 of R.P.C.A Act & Section 3/25 of Arms Act and sentenced him to undergo six months' S.I., along with a fine of Rs. 250/-, default in payment of which he was to further undergo one month simple imprisonment & sentenced him to undergo one year' S.I., along with a fine of Rs. 200/-, default in payment of which he was to further undergo one month simple imprisonment respectively. 5. Learned counsel for the accused-appellant submits that the accused-appellant do not have any criminal antecedents to his discredit. 6. Learned counsel for the accused-appellant further submits that the sentence awarded to the accused-appellant(s) was suspended by this Hon'ble Court vide the order dated 14.10.1993 passed in S.B. Criminal Misc. Suspension of Sentence Petition No.397/1993, and thus, he is on bail. 7. Learned counsel for the accused-appellant further submits that in case, if this Court is not inclined to acquit the appellant of the charges levelled against him, that looking to his age, absence of criminal antecedents against him, he is entitled to be extended the benefit under Section 3 of the Probation of Offenders Act, 1958 (hereinafter referred to as 'the Act') and as per Section 360 Cr.P.C. "3. Power of court to release certain offenders after admonition.- When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition. Explanation.-For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4." 8. 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-appellant is not entitled for any indulgence by this Court. 9. Heard learned counsel for the parties as well as perused the record of the case. 10. In Dalbir Singh Vs. State of Haryana (2000) 5 SCC 82 the Hon'ble Apex Court observed as under;- "Parliament made it clear that only if the court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence." Thus Parliament has left it to the court to decide when and how the court should form such opinion. It provided sufficient indication that releasing the convicted person on probation of good conduct must appear to the court to be expedient. The word "expedient" had been thoughtfully employed by the Parliament in the section so as to mean it as "apt and suitable to the end in view". It provided sufficient indication that releasing the convicted person on probation of good conduct must appear to the court to be expedient. The word "expedient" had been thoughtfully employed by the Parliament in the section so as to mean it as "apt and suitable to the end in view". In Block's Law Dictionary the word "expedient" is defined as "suitable and appropriate for accomplishment of a specified object" besides the other meaning referred to earlier. In State of Gujarat v. Jamnadas G. Pabri & Ors., AIR (1974) SC 2233 a three Judge Bench of this Court has considered the word "expedient''. Learned Judges have observed in paragraph 21 thus: "Again, the word 'expedient' used in this provisions, has several shades of meaning. In one dictionary sense, 'expedient' (adj.) means 'apt and suitable to the end in view', 'practical and efficient'; 'politic'; 'profitable'; 'advisable', 'fit, proper and suitable to the circumstances of the case'. In another shade, it means a device 'characterised by mere utility rather than principle conducive to special advantage rather than to what is universally right' (see Webster's New International Dictionary)." 10.1 In Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC 198 , while reiterating the ratio decidendi laid down in Dalbir Singh (supra), 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..." 12. This Court is conscious of the fact that the offence(s) under Section 2 of R.P.C.A Act and Section 3/25 of Arms Act, as mentioned above, is punishable with an imprisonment of two years. 13. This Court observes that there is no material on record that the accused-appellant has any criminal antecedents. Apart therefrom, on an overall consideration of the facts and circumstances of the case, the accused-appellant deserves to be granted the benefit under Section 3 of the Act, more particularly, in view of the legislative intent of the Act. 13.2 Thus, this Court, after taking into due consideration the legislative intent of the Act and the decisions rendered by the Hon'ble Apex Court in Dalbir Singh (supra) and Mohd. 13.2 Thus, this Court, after taking into due consideration the legislative intent of the Act and the decisions rendered by the Hon'ble Apex Court in Dalbir Singh (supra) and Mohd. Hashim (supra), deems it appropriate to extend the benefit of the Act of 1958 to the accused-appellant. 14. Resultantly, the present appeal is partly allowed. While maintaining the conviction of the present accused-appellant for the offences under Sections Section 2 of R.P.C.A Act and Section 3/25 of Arms Act, 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 appellant shall be released, after due admonition, under Section 3 of the Act. The petitioner is on bail. He need not surrender. His bail bonds stand discharged accordingly. All pending applications stand disposed of. Record of the learned court below be sent back forthwith.