Allowed

Arjun Gundu Patil v. the State of Karnataka

Karnataka HC16 Feb 2021CRL.RP/2124/2012

Case brief

AI extract

What is this about?

The High Court allowed common criminal revision petitions filed by an accused against sentences imposed by the first appellate court. The court set aside the appellate judgment for failing to follow statutory procedure regarding probation reports and depriving the accused of appeal rights. The matter was remanded to the trial court for fresh sentencing considerations within two months.

What did the court decide?

The judgment of the first appellate court is set aside. The matter is remanded to the trial court to pass sentence within two months, considering the applicability of the Probation of Offenders Act.

Arjun Gundu Patil Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 16^TH DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL REVISION PETITION NO.2124/2012 C/W CRIMINAL REVISION PETITION NO.2125/2012

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In Crl.RP No.2124/2012 BETWEEN:

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ARJUN GUNDU PATIL AGE: 41 YEARS, OCC: SECURITY GUARD R/o: ITAGI, TALUKA: KHANAPUR.

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.. PETITIONER

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(BY SRI.SANJAY S. KATAGERI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, THROUGH NANDAGHAD P.S. R/BY ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, CIRCUIT BENCH, DHARWAD.

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.. RESPONDENT

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(BY SRI RAMESH B.CHIGARI, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER DATED 24.02.2012 IN CRL.A.NO.139/2010 PASSED BY THE LEARNED PRL. SESSIONS JUDGE, BELGAUM BY ALLOWING THIS PETITION AND CONFIRMING ORDER DATED 10.06.2010 IN C.C.NO.636/2009 PASSED BY THE ADDL. CIVIL JUDGE AND JMFC, KHANAPUR.

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In Crl.RP No.2125/2012 BETWEEN:

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ARJUN GUNDU PATIL AGE: 43 YEARS, OCC: COOLIE, R/O. ITAGI, TQ: KHANAPUR.

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.. PETITIONER

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(BY SRI. SANJAY S. KATAGERI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, THROUGH NANDAGHAD P.S. R/BY ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, CIRCUIT BENCH, DHARWAD.

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.. RESPONDENT

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(BY SRI RAMESH B.CHIGARI, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED 24.02.2012 IN CRL.A.NO. 140/2010 PASSED BY THE PRL. SESSIONS JUDGE, BELGAUM BY ALLOWING THIS PETITION AND BY CONFIRMING THE ORDER DATED 10.06.2010 IN C.C.NO.668/2009 PASSED BY TEH ADDL. CIVIL JUDGE AND JMFC, KHANAPUR.

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THESE PETITIONS COMING ON FOR HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Criminal Revision Petition Nos.2124/2012 and 2125/2012

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have been filed by the common petitioner/accused under Section 11 of the Probation of Offenders Act, 1958 (hereinafter referred to as the ‘PO Act’, for brevity) read with Section 397 and 401 of the Code

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of Criminal Procedure, 1973, as against the order of sentence passed by the learned Principal Sessions Judge, Belgaum (hereinafter referred to as the ‘first appellate court’, for brevity), in Criminal Appeal Nos.139/2010 dated 24.02.2012 for sentencing him to undergo rigorous imprisonment for a period of one year and to pay fine of 10,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of three months for the offence under Section 34 of KE Act; and further sentenced him in Crl.A.No.140/2010 dated 24.02.2012 to undergo rigorous imprisonment for a period of one year and to pay fine of 10,000/for the offence under Section 32 of the Karnataka Excise Act and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months and further sentenced the petitioner to under rigorous imprisonment for a period of two years and to pay fine of `20,000/- for the offence under Section 34 of the Karnataka Excise Act and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months.

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Since both the revision petitions involve a common

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question of law, they are taken together with the consent of learned counsel on both sides.

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Heard the learned counsel for the petitioner as well as the learned High Court Government Pleader for the respondentState.

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The rank of the parties before the trial court is retained

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for convenience.

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The case of the prosecution in brief is that that the PSI, Nandagad police Station filed a charge sheet against the accused for the offence punishable under Section 273 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) and under Section 34 of the Karnataka Excise Act (hereinafter referred to as the ‘KE Act’) in CC No.636/2009 and the same police filed charge sheet against the same accused for the offence punishable under Section 273 of IPC and under Sections 32 and 34 of the KE Act in CC. No.668/2009. Independent trial in both the cases were conducted by the trial Court and the trial Court found the accused guilty in both the cased and by extending the benefit of Section 4 of PO Act,

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ordered for release of the accused on he executing a personal bond for `25,000/- with a surety for the likesum and further directed that the accused shall appear before the Court and receive sentence whenever called upon during the period of three years and also called for the report of the Probation Officer under the PO Act within two months. Assailing extending the benefit of PO Act in favour of the accused, the State preferred appeals before the first appellate Court in Crl.A.Nos.139/2010 and 140/2010. Both the appeals were heard by the first appellate Court and set aside the order of extending the benefit of PO Act and imposed sentence on the accused as stated supra. Assailing the same, the accused is before this Court in these revision petitions.

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Learned counsel for the petitioner has raised three grounds firstly that the first appellate Court committed an error in passing the sentence without remanding the matter back to the trial Court and erred in passing the sentence where the accused gets a right of an appeal under Section 374 of Cr.P.C., which is a statutory right, which was deprived of by the first appellate Court. Therefore, the sentence passed by the first appellate Court is not

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sustainable in law. The second ground is that the first appellate Court held that the trial Court has committed an error in releasing the accused by extending the benefit under the PO Act but called a report after release, is not correct. Such being the case, the first appellate Court ought to have remanded the matter to the trial Court for passing the sentence. But imposing sentence is not correct. The learned counsel further urged the 3^rd contention that, the first appellate Court has not considered the case on merits and without re-appreciating the evidence, has blindly, passed the sentence, which is not correct. Therefore, the learned counsel prayed for setting the order passed by the first appellate Court and to remand the matter back to the trial Court.

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Per contra, learned High Court Government Pleader supported the judgment passed by the first appellate Court and contended that when a Special Law is enacted, it overrides the other laws in force in the Country. Sections 32 and 34 of the KE Act prescribes for minimum sentence, which is mandatory and such being the case, the Court has no power to reduce the sentence less than the minimum sentence prescribed under law and it cannot

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be extended in Probation of Offenders Act. Hence, the learned Government Pleader prayed for dismissal of the revision petitions.

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Upon hearing the arguments and on perusal of the records, the points that arise for my consideration are:

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i) Whether the first appellate Court committed an error in passing the sentence which calls for interference by this Court?

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ii) Whether the matter requires to be remanded back to the trial Court?

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I have perused the records. It is not in dispute that the

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police filed two separate charge sheets against the accused for having the committed offence under the KE Act. The trial Court which conducted trial, found the accused guilty and after hearing on sentence, it has extended the benefit of Section 4 of PO Act and the accused was ordered to be released on probation on he executing personal bond with a surety on condition that he shall not commit similar offence and shall appear before the court and receive sentence whenever called upon during the period of three years. After the accused was released under Section 4 of PO Act

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subject to satisfaction of the Court on the report to be submitted by the Probation officer and called for a report from the Probation Officer within two months. Further, trial Court has called for the report. This aspect has been considered by the firs appellate Court and has held that it is wrong. In my considered opinion the first appellate Court is correct in holding that calling for a report from the Probation Officer by the trial Court after releasing the accused by extending the benefit of Section 4 of PO Act is not correct. The report ought to have called and thereafter the accused must be released on probation.

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For convenience, Section 4(2) of PO Act reads as

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follows:

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“ 2. Power of court to release certain offenders on probation of good conduct .- (1) xxxx

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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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11. The aforesaid section states that before making any

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order under Section 4(1) of PO Act, the Court has to take into consideration the report if any of the probation officer concerned in

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relation to the case and thereafter the Court has to extend the benefit and even the court can appoint a probation officer for making supervision of the accused who is released on bail and further the proviso to Section 4(1) provides 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 can exercise jurisdiction or in which the offender is likely to live during the period for which he enters into the bond and before making such order, the court shall obtain a report from the probation officer. Such being the case, the order of the trial court releasing the accused/petitioner and thereafter calling for a report from the probation officer is against the law and is illegal which is rightly set aside by the first appellate Court.

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However, the first appellate Court while considering the

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appeal under Section 11 of PO Act, has not considered the appeals on merit as contended by the leaned counsel for the petitioner. The judgment of the first appellate Court reveals that it has not considered the appeal on merits but has only considered the

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releasing of the accused under PO Act. However, as rightly stated, a report has to be obtained from the probation officer before releasing the accused and releasing the accused prior to obtaining report is illegal. But the first appellate Court ought to have remanded the matter back to the trial court for passing the sentence against the accused. If the first appellate Court remanded the matter back to the trial court, the accused would have got a statutory right of preferring an appeal before the learned Sessions Judge under Section 374 of Cr.P.C. However, in view of passing of the sentence without considering the case on merits, the accused is deprived of his statutory right of preferring an appeal before the learned Sessions Judge. But the same is not done. Therefore, the judgment of the first appellate Court and releasing the accused on probation by the trial Court also require to be set aside.

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The learned Government Pleader has relied on the judgment of the Hon’ble Apex Court in the case of Mohd. Hashim vs. State of Uttar Pradesh and others reported in (2017) 2 Supreme Court Cases 198 , wherein at paragraph 19 it is held as under:

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“ 19. The learned counsel would submit that the legislature has stipulated for imposition of sentence of imprisonment for

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a term which shall not be less than six months and the proviso only states that sentence can be reduced for a term of less than six months and, therefore, it has to be construed as minimum sentence. The said submission does not impress us in view of the authorities in Arvind Mohan Sinha and Ratan Lal Arora. We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. however, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the Court. It means a quantum of punishment which cannot be reduced below the period fixed. If the sentence can be reduced to nil, then the statue does not prescribe a minimum sentence. A provision that gives discretion to the Court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence. The two provisions, therefore, are not identical and have different implications, which should be recognized and accepted for the PO Act.”

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In the said case, the Hon’ble Apex Court has held that where there is minimum sentence prescribed and discretion has been given to the Court, still the Court has power to sentence or not to send to jail.

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In another judgment of the Hon’ble Supreme Court between Lakhvir Singh v. The State of Punjab and another in Criminal Appeal Nos.47-48/2021 , at paragraph 13, it has held as under:

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“ 13. Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the ‘PC Act’) prescribes a minimum sentence of imprisonment for not less than one year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE vs. Baubali . It was opined that the Act may not apply in cases where a specific law enacted after 1948 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act. It is in this context, it was observed in State of Madhya Pradesh v. Vikram Das (supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decision ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC, the offence in the present case. In fact, the observation made in Joginder Singh v. State of Punjab are in the same context.”

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The Hon’ble Apex Court in the case of Superintendent,

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Central Excise, Bangalore v. Bahubali reported in (1979) 2 Supreme Court Cases 279 has held that where there is minimum sentence prescribed and there is every right of extending the benefit of PO Act looking to the over riding effect behind the Defence of India Act, 1962.

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In view of my findings stated above that the first appellate Court has committed an error in passing the sentence without considering the case on merits the judgment of the first appellate Court requires to be set aside and the first appellate Court ought to have remanded the matter back to the trial Court to pass sentence. Of course under Section 7, the first appellate Court has power to re-appreciate the evidence on record and pass the sentence as per law but the first appellate, except considering the order extending the benefit to the accused by the trial Court, has not considered the case on merits. Therefore, this Court do not wants to go into the validity or the merits of the case. Therefore, the matter requires to be remanded back to the trial Court for fresh consideration for passing the sentence in accordance with law.

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Considering that the matter is of the year 2010 and the offence committed is in the year 2009, almost 10 years have elapsed, therefore, it is necessary to direct the trial Court to dispose of the matter within time frame. In view of the above findings, the judgment of the first appellate Court requires to be set aside and the matter requires to be remanded to the trial Court for fresh

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consideration for passing the sentence in accordance with law. Accordingly, I answer the points 1 and 2 in the affirmative and in favour of the petitioner and pass the following the order:

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Criminal Revision Petition Nos.2124/2012 and 2125/2012 are allowed. The judgment of the first appellate Court sentencing the petitioner is hereby set aside. The matter is remanded back to the trial Court for passing sentence after considering the judgment of the Apex Court in Superintendent, Central Excise stated (supra) and other cases. The trial Court shall pass necessary orders on sentence in accordance with law whether to extend the power under PO Act or not which shall be decided by the trial Court within two months from the date of receipt of a copy of this order.

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The petitioner is directed to appear before the trial Court on 15.03.2021 without waiting for any notice being issued by the trial Court.

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The registry is directed to send the trial Court records immediately with a copy of this order.

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Sd/JUDGE

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Kmv

Arjun Gundu Patil v. the State of Karnataka

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Arjun Gundu Patil v. the State of Karnataka

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