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2022 DIGILAW 1261 (RAJ)

Sobha Ram v. State

2022-04-22

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. Learned counsel for the petitioner submits that the petitioner has removed his encroachment and on 09.07.2001, he had made an undertaking that he was prepared to surrender the possession of all the vacant land lying on the constructed portion in question. 3. Learned counsel for the petitioner further submits that in pursuance of his assurance to this Court on 09.07.2001, the petitioner has already acted upon and removed all his encroachment. 3. The matter pertains to an incident that occurred in the year 1994 and the present revision has been pending since 2001. 4. Vide impugned judgment dated 28.06.2001 the learned Additional Sessions Judge No.1, Jodhpur in Appeal Case No.5/1999 convicted the petitioner and affirmed the judgment dated 22.01.1999 for the offence under Section 91(6) of Land Revenue Act and sentenced him to undergo 1 year S.I. along with a fine of Rs.100/- default in payment of which he was to further undergo 7 days. 5. Learned counsel for the accused-petitioner submits that the accused petitioner do not have any criminal antecedents to his discredit. 6. Learned counsel for the accused petitioner further submits that the sentence awarded to the accused petitioner was suspended by this Hon'ble Court vide the order dated 09.07.2001 and thus, he is on bail. 7. Learned counsel for the accused-petitioner however, makes a limited prayer that the accused-appellant(s) may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as 'the Act'). '4. 7. Learned counsel for the accused-petitioner however, makes a limited prayer that the accused-appellant(s) may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as 'the Act'). '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)... ' 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-petitioner 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 Arvind Mohan Sinha Vs. Amulya Kumar Biswas (1974) 4 SCC, the Hon'ble Apex Court observed as under:- 'The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society. 10. In Arvind Mohan Sinha Vs. Amulya Kumar Biswas (1974) 4 SCC, the Hon'ble Apex Court observed as under:- 'The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society. In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the novice who strays into the path of crime ought, in the interest of society, be treated as being socially sick. Crimes are not always rooted in criminal tendencies and their origin may lie in psychological factors induced by hunger, want and poverty. The Probation of Offenders act recognises the importance of environmental influence in the commission of crimes and prescribes a remedy whereby the offender can be reformed and rehabilitated in society.' 10.1 In Brij Lal Vs. State of Rajasthan RLW 2022 Raj 945, a Coordinate Bench of this Court observed as under:- 'Under Section 4 of the Probation of Offenders Act nature of offence is one of the major-criteria for determining whether benefit of this provision should be given to the concerned offender or not. His age would be another relevant factor and the circumstance in which the offence was committed may be 3rd important consideration... ' 10.2 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...' 13. This Court observes that there is no material on record that the accused-petitioner has any criminal antecedents. Thus, the accused-petitioner is entitled to the benefit under the Probation of Offenders Act, 1958. 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 Mohd. Hashim (supra), deems it appropriate to extend the benefit of the Act to the accused- petitioner. 14. Thus, the accused-petitioner is entitled to the benefit under the Probation of Offenders Act, 1958. 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 Mohd. Hashim (supra), deems it appropriate to extend the benefit of the Act to the accused- petitioner. 14. Resultantly, the present petition is partly allowed. While maintaining the conviction of the present accused-petitioner for the offence under Section Section 91(6) of Land Revenue 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(s) shall be released on probation, under Section 4 (while considering Section 6) of the Act, upon his 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 he shall maintain peace and good behaviour for a period of two years and shall not repeat the offence. 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.