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2023 DIGILAW 885 (MP)

Kammod v. State of Madhya Pradesh

2023-11-02

SANJEEV S.KALGAONKAR

body2023
ORDER 1. This criminal revision under Section 397 read with Section 401 of CrPC is filed assailing the order dated 18.11.2021 passed in Criminal Appeal No.42/2021 by learned Principal Sessions Judge, Datia by which judgment of conviction dated 24.03.2021 passed in Criminal Case No.391/2015 by Ms. Ruchi Golas, Chief Judicial Magistrate First Class, Bhander was confirmed. 2. The petition in brief states as under:- (i) That, a criminal complaint was registered at Crime No.228/2015 for offence punishable under Sections 294, 324 and 506(b) of IPC against the revision petitioners at Police Station Bhander. Learned trial Court after trial, acquitted the petitioners for offence punishable under Sections 294 and 506(b) of IPC, but convicted them for the offence punishable under Section 323 of IPC and sentenced them for imprisonment till rising of the Court and fine of Rs.3000/- each with default stipulations of simple imprisonment for 15 days vide judgment dated 24.03.2021. (ii) The petitioners have filed appeal assailing the conviction and sentence vide judgment dated 24.03.2021. Learned trial Court rejected the appeal and confirmed the judgment of conviction and order of sentence. 3. The impugned judgments are assailed in this revision petition on following grounds:- (i) The trial Court has not mentioned any reasons for not giving benefit of Section 360 of CrPC and the provisions of Probation of Offenders Act to the convicts/petitioners. Learned trial Court and learned First Appellate Court has committed an error in ignoring the provisions of Section 360 of CrPC and Sections 3 and 4 of Probation of Offenders Act. 4. On these grounds, it is requested that the judgment dated 18.11.2021 passed in Criminal Appeal No.42/2021 passed by Principal Sessions Judge, Datia may be quashed and the petitioners may be acquitted. 5. Learned counsel for the petitioners relying on the judgment of Lakhanlal @ Lakhan Singh Vs. State of M.P. in Criminal Appeal No.1306/2013 judgment dated 04.04.2019 and the order dated 04.04.2022 passed by Coordinate Bench of this court in case of Santosh Vs. Shyambai in CRR No.3334/2021 contends that learned Trial Court and learned First Appellate Court have not assigned any reasons for declining the benefit of Section 360 of CrPC. Further, both the Courts have not considered the provision of Sections 3 and 4 of the Probation of Offenders Act in proper prospective. The petitioners deserve extending the benefit of aforementioned provisions with regard to reformative criminal jurisprudence. 6. Further, both the Courts have not considered the provision of Sections 3 and 4 of the Probation of Offenders Act in proper prospective. The petitioners deserve extending the benefit of aforementioned provisions with regard to reformative criminal jurisprudence. 6. Learned counsel further relying on the judgment of Supreme Court in case of Jugal Kishore Prasad Vs. State of Bihar (1972) 2 SCC 633 contends that the benefit of Probation of Offenders Act ought to be extended to first offenders. Since learned trial Court and the learned First Appellate Court have not assigned any reasons for declining the benefit to the first offender, the impugned judgments suffer from illegality, therefore, deserve to be set aside. 7. Per contra, learned counsel for the State opposes the petition and submits that considering the conduct of the accused in inflicting injuries to various victims, learned trial Court and learned First Appellate Court have committed no error in declining benefit of Probation of Offenders Act to the petitioners. 8. Heard both the parties and perused the record. Section 360 provides as under:- 360.order to release on probation of good conduct or after admonition-(1) when any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty- one years of age or any woman is- convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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: 9. Thus, first offender may be released on probation of good conduct or after admonition provided that it appears that it is expedient to do so, regard being had to the age, character, or antecedent of the offender and to the circumstances in which the offence was committed. The benefit of this provision cannot be claimed as a matter of right rather it is discretion of Court to be exercised on aforementioned parameters. Section 3 of the Probation of Offenders Act,1958 lays down:- 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. Section 4 of the Probation of Offenders Act,1958 lays down:- 4. Section 4 of the Probation of Offenders Act,1958 lays down:- 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. 10. The Apex Court in case of Mohd. Hashim v. State of U.P., (2017) 2 SCC 198 observed as under:- 21. In this regard, it is also seemly to refer to other authorities to highlight how the discretion vested in a court under the PO Act is to be exercised. In Ram Parkash v. State of H.P. [Ram Parkash v. State of H.P., (1972) 4 SCC 46 : 1973 SCC (Cri) 119 : AIR 1973 SC 780 ] , while dealing with Section 4 of the PO Act in the context of the Prevention of Food Adulteration Act, 1954, the Court opined that the word "may" used in Section 4 of the PO Act does not mean "must". On the contrary, as has been held in the said authority, it has been made clear in categorical terms that the provisions of the PO Act distinguish offenders below 21 years of age and those above that age and offenders who are guilty of committing an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. Thereafter, the Court has proceeded to observe: (SCC p. 48, para 7) " 7. ... While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct in the case of offenders below the age of 21 years an injunction is issued to the Court not to sentence them 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 offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act. (Rattan Lal v. State of Punjab [Rattan Lal v. State of Punjab, AIR 1965 SC 444 : (1965) 1 Cri LJ 360] and Ramji Missar v. State of Bihar [Ramji Missar v. State of Bihar, AIR 1963 SC 1088 : (1963) 2 Cri LJ 173] .)" Be it noted, in the said case, keeping in view the offence under the Prevention of Food Adulteration Act, 1954, the Court declined to confer the benefit under Section 4 of the PO Act. 22. We have referred to the aforesaid authority to stress the point that the court before exercising the power under Section 4 of the PO Act has to keep in view the nature of offence and the conditions incorporated under Section 4 of the PO Act. Be it stated in Dalbir Singh v. State of Haryana [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208 : AIR 2000 SC 1677 ] it has been held that Parliament has made it clear that only if the Court forms the opinion that it is expedient to release the convict on probation for the good conduct regard being had to the circumstances of the case and one of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence". The Court has further opined that though the discretion has 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. Explaining the word "expedient", the Court held thus: (SCC p. 86, paras 9-10) "9. ... The word "expedient" had been thoughtfully employed by Parliament in the section so as to mean it as "apt and suitable to the end in view". In Black'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 [State of Gujarat v. Jamnadas G. Pabri, (1975) 1 SCC 138 : AIR 1974 SC 2233 ] a two-Judge Bench of this Court has considered the word "expedient". The learned Judges have observed in para 21 thus: (SCC p. 145) '21. ... Again, the word "expedient" used in this provision, 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. It was then held that the court must construe the said word in keeping with the context and object of the provision in its widest amplitude. Here the word "expedient" is used in Section 4 of the PO Act in the context of casting a duty on the court to take into account "the circumstances of the case including the nature of the offence.". This means Section 4 can be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct." 11. In the light of aforementioned proposition of law, the fact situation on record is examined. 12. In the light of aforementioned proposition of law, the fact situation on record is examined. 12. It was found proved that the accused have assaulted Mannu Lal with axe, wooden stick (lathi) and wooden stick with iron head (lohangi) and inflicted multiple injuries and threatened him to withdraw the appeal in land dispute. Learned trial Court and the learned Appellate Court considering the act and conduct of the accused and multiple injuries caused to the injured Mannu Lal did not consider it expedient to extend benefit of probation of good conduct to the accused. Learned trial Court taking a lenient view on the point of sentence has sentenced the petitioners with imprisonment till rising of the Court and fine of Rs.300/-which is affirmed by the learned Sessions Judge. No interference is called for in the minimum sentenced imposed upon the revision petitioners. 13. Therefore, no patent illegality or irregularity or impropriety is made out in the impugned judgment. This criminal revision being devoid of merits and is hereby dismissed.