Sankar Das Vs the State of Assam

Sections 397/401 of the Code of Criminal Procedure, 1973, assailing the judgment and order dated 11.07.2013 passed by the learned Additional Sessions Judge No. 1, Kamrup in Crl. A. No. 141/2012, affirming the conviction and sentence of Simple Imprisonment of 1 (one) year passed against the petitioner by the learned Judicial Magistrate, First Class, Hajo in G.R. Case No. 290/2007.

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3 . The prosecution case as unfolded during the trial is to the effect that one Maina Das, as informant had lodged an FIR with the Officer-in-Charge of Hajo Police Station, interalia, alleging, therein, that the wife of the accused, Smti. Marami Das, while looking for her son, Mriganga Das, had found him in the house of her mother-in-law, Smti. Namita Das. Accordingly, a quarrel ensued in the matter between said Marami Das and Namita Das. It is further alleged that the accused, Sankar Das had at that point of time arrived at the place of occurrence and hacked his mother with a sharp weapon. His mother on sustaining injury at her head had become unconscious. It is further alleged in the said FIR that the younger brother of the accused had also come to the place of occurrence and the accused had also hacked him but unfortunately the blow had not fallen on his person.

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4 . On receipt of the said Ejahar, police registered a case and investigated into the matter. On conclusion of the investigation, a charge-sheet was laid against the petitioner, herein, under Sections 325/447 IPC. The petitioner had not pleaded guilty to the charge framed against him and having claimed to be tried, a trial was held in the matter.

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5 . The prosecution during the trial examined 9 witnesses. On conclusion of the trial, the learned Trial Court on appreciation of the evidences coming on record was pleased vide judgment dated 15.11.2012 to proceed to convict the petitioner, herein, under Section 325 IPC. However, he was acquitted from the charge of criminal trespass under Section 447 IPC. On such conviction of the appellant, he was sentenced to undergo Simple Imprisonment for a period of 1 (one) year.

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6 . Being aggrieved with the judgment and order dated 15.11.2012 passed by the learned Trial Court, the petitioner, herein, had assailed the same by way of instituting an appeal, being Crl. A. No. 141/2012, before the learned Sessions Judge, Kamrup at Guwahati.

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The said appeal was transferred to the Court of learned Additional Sessions Judge No. 1, Kamrup for disposal. The Appellate Court on re-appreciation of the evidences coming on record was pleased vide judgment dated 11.07.2013 to dismiss the same by holding the same to be devoid of any merit and thereby affirming the conviction and sentence passed in the matter against the petitioner, herein, by the learned Trial Court.

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7. Being aggrieved, the petitioner has instituted the present proceeding.

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8. Mr. Mahajan, learned counsel for the petitioner, at the outset, submits that he shall not challenge the impugned order of conviction on merit and shall confine his submission only in respect of the order of sentence.

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9. Mr. Mahajan, learned counsel argues that the petitioner is entitled for benefit under Section 360 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. Mahajan, learned counsel further submits that accused petitioner has not been convicted previously for any offence and he is first time offender.

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10. According to Mr. Mahajan, learned counsel though the learned trial Court ought to have considered granting benefit under the Act, 1958, however, same was rejected only on the consideration of gravity of the alleged offence and at the same time, the learned Appellate Court even did not consider grant of benefit to the petitioner though the conviction and sentence was modified.

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11. It is further contended by the learned counsel for the petitioner that the accused is having a right of consideration under the Act, 1958 and therefore, the right of the petitioner has been violated. It is argued that the learned Appellate Court did not invoke the provisions of the Act, 1958 nor the provisions of Section 360 Cr.P.C while sentencing the accused petitioner and the Trial Court has not given any special reason in the impugned judgment and order of conviction and sentence, for not giving benefit of such provision.

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12. Mr. R J Baruah, learned Additional Public Prosecutor, Assam, by referring to the evidences coming on record in the trial as well as the conclusions reached thereon by the

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learned Trial Court, has submitted that the offence against the petitioner, herein, was proved beyond reasonable doubt. He further submits that the petitioner being the aggressor in the matter would not be entitled to any leniency. However, the learned Trial Court by taking a lenient view in the matter, had imposed upon the petitioner a lenient punishment. He, further submits that the Appellate Court on a re-appreciation of the evidences and a detailed discussion thereon, had proceeded to uphold the decision of the learned Trial Court and no error is found with regard to the conclusions drawn by the learned Appellate Court in the matter. Accordingly, he submits that given the nature of offence proved against the petitioner, herein, he would not be entitled to the benefit under the provisions of the said Act of 1958.

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13. I have heard the learned counsel for the parties and also perused the materials coming on record.

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14. This Court has meticulously perused the evidences coming on record in the trial and thereafter, on a perusal of the judgment and order dated 15.11.2012 passed by the learned Trial Court does not find any patent error or illegality, therein. Accordingly, the conviction of the petitioner, herein, by the learned Trial Court would not mandate any interference.

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15. This Court has also perused the judgment dated 11.07.2013 passed by the learned Appellate Court and on a consideration thereof finds that the same also would not mandate any interference, inasmuch as, the conclusions drawn therein are fully supported by the materials coming on record in the Trial. Accordingly, the decision of the Appellate Court, to uphold the conviction of the petitioner, herein, by the Trial Court, in the considered view of this Court would not mandate any interference.

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16. Having drawn the above conclusion with regard to the conviction of the appellant by the learned Trial Court and the decision of the learned Appellate Court upholding the same, this Court would now deal with the entitlement of the petitioner, herein, to the benefits available to him under the provisions of the said Act of 1958 Act.

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17. The provisions of Section 4 of the said Act of 1958 being relevant is reproduced herein under for ready reference :-

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“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:

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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.

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(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.

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(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one Page 12 of 18 year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

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(4) The Court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional

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conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

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(5) The Court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.”

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Reading of the aforesaid provision of the Act, 1958, it appears that the power is discretionary and the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. It is thus imperative for the Court while considering the nature of the offence to take a realistic view of the gravity and the impact which the offence had on the victim. This power is vested with the Court when any person is found guilty of the offence committed, not punishment with death or imprisonment for life. Thus, if the Court thinks that having regard to the circumstances of the case including the nature of the offence and the character of the offender, benefit may be extended to the accused.”

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18. The Hon’ble Supreme Court in the case of Sitaram Paswan Vs. State of Bihar, reported in (2005) 13 SCC 110 had drawn the following conclusions :-

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“8. Section 4 of the Probation of Offenders Act empowers the Court to release a convicted person on his entering into a bond with or without sureties on probation when he is found guilty of committing of any offence not punishable with death or imprisonment for life.

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Relevant portion of Section 4 of the Probation of Offenders Act, 1958 reads thus:

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‘Section 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

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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 Page 10 of 18 meantime to keep the peace and be of good behaviour.’

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For exercising the power which is discretionary, the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. The benefit available to the accused under Section 4 of the Probation of Offenders Act is subject to the limitation embodied in the provisions and the word "may" clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation of Offenders Act, having regard to the nature of the offence and the character of the offender and overall circumstances of the case. The powers under Section 4 of the Probation of Offenders Act vest with the Court when any person is found guilty of the offence committed, not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Court thinks that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the Court even at the appellate or revisional stage and also by this Court while hearing appeal under Article 136 of the Constitution of India.”

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19. A Co-ordinate Bench of this Court in the case of Ratul Bhuyan Vs. State of Assam (Crl. Rev. P. No. 383/2013) noticing the decision of the Hon’ble Supreme Court in the case of Sitaram Paswan (Supra) had drawn the following conclusion :-

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“16. 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 individual offender than to punish him. It was also held by 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 material necessary 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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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 principle 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 court is to consider the circumstances of the case, the nature of offence and the character of the offender. While considering the nature of the 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 Page 14 of 18 with the court whether to release the offender in exercise of power under section 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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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 Apex Court hearing appeal under Article 136 of the Constitution of India.”

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20. The learned Trial Court although had noticed the provisions of the said of Act 1958, had refused to apply the same in the case of the petitioner, herein, by holding that the crime committed by the petitioner was of a serious nature and was marked with vindictiveness. In the considered view of this Court, the said reason is not acceptable. The learned Trial Court

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failed to appreciate the matter by applying the principles as evident from the decisions noticed, hereinabove. This Court also on perusal of the judgment dated 11.07.2013 passed by the Appellate Court in Crl. A. No. 141/2012 finds that the Appellate Court had failed to appreciate the contention of the petitioner, herein, made before it with regard to the application of the provisions of the said Act of 1958 to him.

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21. It is further a settled position of law that such power can be exercised by the Court even at the appellate or revisional stages and also by the Hon’ble Supreme Court in an appeal under Article 136 of the Constitution of India. Having noticed the settled position of law in the matter, this Court proceeds to consider as to whether the provisions of the said Act of 1958 can be made applicable to the case of the petitioner, herein.

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22. In the case in hand, the offence was committed on 05.10.2007. The nature of the offence and the manner in which it was committed, it cannot be said that the same was a heinous or premeditated, inasmuch as, admittedly, there was an altercation between the petitioner and the victim. Further, the material brought on record does not reveal that the petitioner, herein, had committed any similar nature of offence prior to the one involved in the matter and during the pendency thereof. It is also noticed by this Court that the petitioner, herein, had been litigating in the Courts, facing trial, appeal and in the present revision for long period of time.

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23. Considering the above stated facts and without entering into the merits of the judgments impugned and considering the relevant provisions and settled propositions of law and the period that has lapsed from the date of incident, this court is of the considered opinion that this is a fit case where the benefit of provisions of Probation of Offenders Act, 1958 should be given to the accused petitioner by this Court in exercise of its revisional power. Accordingly, for the reasons recorded hereinabove, the petitioner is held to be entitled to the benefits under the provisions of the Probation of Offenders Act, 1958 and accordingly, sentence is modified to that effect and it is provided that instead of sending him to jail, he should be given the benefit of Section 4 of the Probation of Offenders Act, 1958.

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24. Accordingly, it is directed that the petitioner will file two sureties to the tune of

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Rs.20,000/- along with personal bond before the learned trial Court i.e., the learned Judicial Magistrate, First Class, Hajo and undertake to the effect that the petitioner shall maintain peace and good behaviour during the period of one year from today. The aforesaid bond be filed by the petitioner within a period of 1 (one) month from the date of this order.

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25. With the above observations and directions, the present criminal revision petition stands allowed.

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JUDGE

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Sankar Das v. the State of Assam

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Sankar Das v. the State of Assam

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