Allowed

Abu Bakkar and 2 Ors. v. the State of Assam

Gauhati HC4 Dec 2024Crl.Rev.P./349/2012

Case brief

AI extract

What is this about?

In a criminal revision petition challenging convictions for mischief and criminal trespass, the Gauhati High Court, modifying the sentence, granted the petitioners the benefit of the Probation of Offenders Act, 1958, directing them to file a personal bond with sureties instead of undergoing imprisonment.

What did the court decide?

Petitioners granted benefit of Probation of Offenders Act, 1958; sentenced to 1 year probation on personal bond with Rs. 10,000 sureties each.

Abu Bakkar and 2 Ors. Vs the State of Assam — Criminal Trial and Appeal | Gauhati HC (2024)

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GAHC010182692012

2024:GAU-AS:12595

THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Rev.P./349/2012

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ABU BAKKAR and 2 ORS S/O LT. MIRJAN ALI,

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2: WAHAB ALI S/O LT. AMIN ALI

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3: KHALIL UDDIN S/O WAHAB ALI ALL ARE R/O VILL- BASHAIL P.S. BADARPUR DIST. KARIMGANJ ASSA VERSUS

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THE STATE OF ASSAM

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Advocate for the Petitioner : MR.S C BISWAS, MR.B CHOUDHURY,MR.T HUSSAIN,MS.S D CHOUDHURY,MS.A DEY,MS.E SHITIRI Advocate for the Respondent : PP, ASSAM, ,,,,

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BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

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JUDGMENT & ORDER (ORAL)

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Date : 05-12-2024

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1. Heard Mr. S.C.Biswas, learned counsel for the petitioners and Mr. P. Borthakur, learned Additional Public Prosecutor (APP), Assam for the State.

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2. The present criminal revision petition under Sections 397/401 read with Section 483 of the Code of Criminal Procedure, 1973 is filed challenging the legality, propriety and correctness of the judgment and order dated 13.06.2011 passed by the learned Judicial Magistrate, First Class, (JMFC, in short) Karimganj in connection with G.R. Case No. 962/2003 arising out of Badarpur P.S. Case No. 188/2003 convicting the petitioner Nos. 1 & 2 and sentencing them to pay fine of Rs. 200/- each and in default of payment of fine, to undergo Simple Imprisonment (SI) for 15 (fifteen) days for the commission of offences under Sections 447/149 IPC and to pay another amount of fine of Rs. 300/- for the commission of offence under Section 143 IPC and in default of payment of said fine, to undergo SI for 30 days and to pay fine of Rs. 500/- and in default of payment of fine, to undergo SI for 60 (sixty) days for the commission of offences under Sections 427/149 IPC. Further, the challenge is against the judgment and order dated 12.06.2012 passed by the learned Sessions Judge, Karimganj in Criminal Appeal No. 8(3)/2011 upholding the judgment and order dated 13.06.2011 passed by the learned JMFC, Karimganj.

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3. The prosecution story in nutshell is that on 01.11.2003, the complainant, namely, Abdul Wahid filed a complaint case before the Court of learned Chief Judicial Magistrate, Karimganj alleging inter-alia that he had a land dispute in respect of a road with the accused/petitioner No. 2 and one Abdul Sattar, which was subsequently settled. Thereafter, on 31.10.2003, out of grudge of the settlement of the dispute on compromise, the accused person at the instance of the aforesaid accused persons forming an unlawful assembly with deadly weapons like dao, axe, dagger etc. trespassed into the Southern side of the homestead of the complainant and they damaged the saplings of the betel-nut, sirish, banana, bamboos etc. The complainant also alleged that on raising alarm,

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when neighbouring people started to rush his house, the accused persons fled away. As a result, the complainant sustained loss of Rs. 5,000/-. After receipt of the said complaint case, the learned Chief Judicial Magistrate, Karimganj forwarded the case to the officer-in-charge, Badarpur Police Station and the same was registered as Badarpur P.S. Case No. 188/2003 under Sections 143/447/427/379/506IPC and accordingly, the case was investigated. Subsequently, on completion of the investigation, the concerned Investigating Officer submitted charge-sheet against the accused/petitioners under Sections 143/447/427 IPC. Thereafter, the accused/petitioners appeared before the learned Court below on receipt of summons and the charges under Sections 143/447/427 IPC were explained to them, which they pleaded not guilty and accordingly, the trial was proceeded. Thereafter, the learned JMFC, Karimganj by the judgment and order dated 13.06.2011 found the accused/petitioners guilty for the commission of offence under Sections 143/447/427/149 IPC except the petitioner No.3 and convicted & sentenced them as recorded herein above and the same was also affirmed by the learned Appellate Court vide the judgment and order dated 12.06.2012.

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4. Being aggrieved, the present petition is filed.

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5. Mr. Biswas, learned counsel for the petitioners, at the outset, submits that he shall not challenge the impugned order of conviction on merit and shall confine his submission for grant benefit of probation to the accused/petitioners.

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6. Mr. Biswas, learned counsel for the petitioners argues that the petitioners are entitled for the benefit under Sections 360/361 Cr.P.C. and under the Probation of Offenders Act, 1958 (hereinafter referred to as Act, 1958) which had not been granted by both the learned Courts below. Mr. Biswas,

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learned counsel for the petitioners further submits that the accused/petitioners had not been convicted previously for any offence and they are first time offenders.

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7. According to Mr. Biswas, learned counsel for the petitioners that though the learned Trial Court considered for granting the benefit under the Act, 1958, however, the same was rejected only on the consideration that the act of the accused/petitioners disturbed peace and tranquility in the society and at the same time, the learned Appellate Court also did not allow to extend the benefit of probation considering the offence. Thus, both the Courts below failed to properly apply the provision of law in this regard.

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8. The learned Addl. Public Prosecutor, Mr. P. Borthakur, has objected to such prayer of the accused/petitioners for granting benefit of probation to them.

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9. I have heard the submissions advanced by the learned counsels for the parties.

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10. This Court has perused the records of the learned Trial Court including the evidence of the witnesses as well as the judgments of the learned Courts below.

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11. This Court after perusal of the materials available on record has also not found any patent error or illegality in the judgments. Therefore, this Court will now deal with the entitlement of the petitioners of the benefit under the Act, 1958.

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12. It is by now well settled that Act, 1958 is a milestone in progress of modern liberal trend of reform in the field of Penology. It is the result of recognition of the doctrine that the object of criminal law is more to reform the

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individual offender than to punish him. It was also held by the Hon’ble Apex Court in the case of Ved Prakash Vs. State of Haryana reported in 1981 1 SCC 447 , that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial Court should collect necessary material to award a just punishment in circumstances. It was further held that the social background and the personal factors of the crime doer are very relevant in this regard.

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13. In the case of Sita Ram Paswan Vs. State of Bihar reported in AIR 2005 SC 3534 , the Hon’ble Apex Court has laid down certain principles for exercise of discretionary power under the Act and the consideration required. The Hon’ble Apex Court opined that while exercising the discretionary power under the Act, 1958, the Courts are to consider the circumstances of the case, the nature of offence and the character of the offender. While considering the nature of offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. It was concluded by the Hon’ble Apex Court that the benefit available to the accused under Section 4 of the Act, 1958 is subject to the Limitation embodied in the provision and the word ‘may’ clearly indicates that the discretion is vested with the Court whether to release the offender in exercise of power under sections 3/4 of the Act, 1958, having regard to the nature of the offence, the character of the offender and overall circumstances of the case.

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14. It was further held by the Hon’ble Apex Court that such power can be exercised by the Court even at the appellate or revisional stage or also by the Apex Court hearing appeal under Article 136 of the Constitution of India.

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15. Now in the backdrop of the aforesaid settled propositions of law, let this

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Court consider the arguments advanced by the learned counsel for the parties.

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16. In the case in hand, the offence was committed on 31.10.2003.The nature of offence cannot be said to be heinous in the given circumstances of the case. It is also asserted by the learned counsel for the petitioners that the accused/petitioners have not committed any offence of similar nature or to say any offence prior to the incident or during pendency of this appeal till date. The learned APP has also submitted that he has no instruction as regards any criminal activities of the accused/petitioners. This Court has also considered that the accused/petitioners have suffered for last 12 years litigating in the Court and facing trial, appeal and revision.

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17. Considering the above stated facts and without entering into the merit of the impugned judgments and following the relevant provisions and the settled propositions of law and the period of lapse from the date of incident as well as the nature of allegation, this Court is of the considered opinion that this is a fit case where the benefit of provisions of the Probation of Offenders Act, 1958 should be given to the accused/petitioners by this Court in exercise of its revisional power. Accordingly, for the reasons recorded hereinabove, the petitioners, namely, (i) Abu Bakkar , (ii) Wahab Ali and (iii) Khalil Uddin , be given the benefit under the provisions of the Probation of Offenders Act, 1958 and accordingly, the sentence is modified to that effect and it is provided that instead of sending them to jail, they should be given the benefit of Section 4 of the Probation of Offenders Act, 1958.

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18. Accordingly, it is directed that the petitioners, namely, ((i) Abu Bakkar , (ii) Wahab Ali and (iii) Khalil Uddin , will file two sureties to the tune of Rs. 10,000/- each along with personal bond each before the learned Trial Court i.e.,

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Judicial Magistrate, 1^st Class, Karimganj and undertake to the effect that the petitioners shall maintain peace and good behaviour during the period of one year from today. The aforesaid bond be filed by the petitioners within a period of 2 months from the date of this judgment.

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19. With the aforesaid, the criminal revision petition stands allowed.

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20. LCR be returned back.

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JUDGE

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Abu Bakkar and 2 Ors. v. the State of Assam

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Abu Bakkar and 2 Ors. v. the State of Assam

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