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2024 DIGILAW 95 (RAJ)

Kamla v. State of Rajasthan

2024-01-15

MANOJ KUMAR GARG

body2024
ORDER : 1. By way of filing the instant Criminal Revision Petition, challenge has been made to the order dated 14.02.2023 passed by the learned Additional Sessions Judge, Deedwana, District Nagaur in Criminal Appeal No. 46/2015 whereby the learned appellate Court maintained the judgment of conviction under Sections 498A and 406 of the IPC but quashed the order of sentence and instead of sending the accused to jail, extended them the benefit of probation under section 4 of the Probation of Offenders Act and cost of proceeding were imposed upon them. 2. Heard learned counsel for the petitioner as well as learned Public Prosecutor for the State. Perused the material available on record. 3. Bereft of elaborate details, the facts of the case are that the petitioner is the victim/complainant of a case filed under Sections 498A and 406 of the IPC against the respondents No. 2 to 4 before the learned Additional Chief Judicial Magistrate, Deedwana, District Nagaur. After a rigorous trial, the learned Judicial Magistrate convicted the accused-respondents for the offences under Sections 498A and 406 of the IPC and sentenced each of them to undergo one year imprisonment alongwith a fine of Rs. 500/- with default clause applicable to each of the accused under each caption vide order dated 22.07.2015. 4. The accused-respondents preferred an appeal before the learned Additional District & Sessions Judge, Deedwana, District Nagaur, wherein both the parties were heard on the finding of guilt as well as on the propriety of the sentence. The Court of appeal, after appreciation of evidence brought on record, was of the view that no error was committed by the learned Magistrate in reaching to the finding of guilt against the accused-respondents, however, since the accused were facing trial for long 14 years and respondent No. 3 was an old woman, thus, after considering the totality of the facts and circumstances of the case, learned appellate Court set aside the order of sentence and instead thereof, extended benefit under section 4 of the Probation of Offenders Act to them. At the same time, under section 5 of the Probation of Offenders Act, a cost of Rs. 2,000/- was imposed upon each of the accused vide judgment dated 14.02.2023. Aggrieved by the alteration made by learned appellate Court in the order of sentence passed by the learned Magistrate, the complainant petitioner preferred the instant revision petition. 5. At the same time, under section 5 of the Probation of Offenders Act, a cost of Rs. 2,000/- was imposed upon each of the accused vide judgment dated 14.02.2023. Aggrieved by the alteration made by learned appellate Court in the order of sentence passed by the learned Magistrate, the complainant petitioner preferred the instant revision petition. 5. I have minutely gone through the facts and the record of the case. It is not under dispute that marriage of the petitioner got solmenized with the accused-respondent No. 2 Mukesh Kumar on 25.02.2001 and the couple were blessed by two issues out of their wedlock but it seems that due to circumstances enumerated in the order under assail, the marriage could not be subsisted and therefore, she was ostracized from her matrimonial home. Thereafter, she moved a complaint against the respondents for the cruelty meted out to her and for the misappropriation of property. A warrant case was instituted upon the complaint. No pre-charge evidence has been recorded and the proceedings under Sections 244 to 246 Cr.P.C. have not been taken care of, however, the same is not under challenge. Since a long time, both the parties are residing separately and now, 21 years have elapsed. There are various theories of punishment namely (i) retributive, (ii) deterrent, (iii) reformative and (iv) preventive. The philosophy behind the concept of punishment is not only to provide justice to the aggrieved but besides this, it is also to maintain security and safety in the Society. To penalise a criminal is not to give torture to him or to humiliate him but there is a higher object to be achieved i.e. to establish a peaceful society and punishment is a means of social trial. From different types of punishment theories, the Indian Criminal Justice System has adopted the reformative theory of punishment which is also known as “corrective” or “rehabitation” theory. Reformation means the effort to restore a man to the society as a better or a wiser man or as a good citizen. The idea behind this theory is that “no one is a born criminal and criminals are also humans”. Under this theory, it is believed that if the criminals are trained, educated and given an opportunity, then they can transform into law abiding citizens. Section 360 of the Cr.P.C. mandates extension of benefit to accused who is under the purview of this provision. Under this theory, it is believed that if the criminals are trained, educated and given an opportunity, then they can transform into law abiding citizens. Section 360 of the Cr.P.C. mandates extension of benefit to accused who is under the purview of this provision. 6. A mandate of Section 361 Cr.P.C. has been created by casting a duty upon the judicial officer to show reasonable cause/explain as to why the benefit of probation cannot be granted and the same should be explained in express terms. Besides the above, Sections 3, 4 & 5 of the Probation of Offenders Act are also there providing provision for extension of benefit to an offender post his conviction. Under Section 235(2) of the Cr.P.C., the discretion vests with the Magistrate to hear the accused on the point of sentence and then, pass the order. Section 235(2) of the Cr.P.C. is reproduced as under: “(1)..... (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence and then pass sentence on him according to law.” A plain reading of the provision mentioned above making it abundantly clear that everywhere discretion has been given to a judicial officer to extend the benefit of probation to a guilty person after hearing him on the question of sentence. While hearing on the point of sentence, a judicial officer can take into account the circumstances of the case, the circumstances of the accused, his social and economical background, his age and character and antecedents. Once the discretion has been exercised by the learned Court of appeal after taking into consideration the entire facts and circumstances of the case, then this Court is of the opinion that until and unless overwhelming circumstances are shown or any apparent error on the face of the record is pointed out, the High Court, in its revisional jurisdiction, should refrain from making interference. 7. In view of the discussion made herein above and keeping in view the provisions as aforesaid, this Court is of the opinion that no error has been committed by the learned Court of appeal in passing the order impugned. Thus, there is no force in the instant revision petition, the same is dismissed as such. 8. The stay petition also stands disposed of. 9. Record of the court below be sent back.