Partly allowed

Smt. Sumati v. State

Rajasthan HC23 Nov 2022CRLA/533/2003

Case brief

AI extract

What is this about?

The High Court partly allowed the criminal appeal. The court convicted the appellant under Section 306 IPC but, considering her character and the facts, extended the benefit of Section 4 of the Probation of Offenders Act, 1958, releasing her on personal bond and two sureties for six months.

What did the court decide?

Conviction under Section 306 IPC maintained. Appellant released on probation under Section 4 of Probation of Offenders Act, 1958, via personal bond and sureties for six months.

Smt. Sumati Vs State — Rajasthan HC (2022) — LawSathi Research

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Appeal No. 533/2003

Smt. Sumati

----Appellant

Versus

State of Rajasthan

----Respondent

For Appellant(s)	: Mr. Chaitanya Gahlot
For Respondent(s)	: Mr. Arun Kumar,PP

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Order

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23/11/2022

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This Criminal Appeal has been preferred under Section 374(2) Cr.P.C. praying for the following reliefs:-

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“It is, therefore, most humbly and respectfully prayed that this appeal under Section 374(2) of Cr.P.C. may kindly be allowed, the impugned judgment of conviction and order of sentence dated 5.5.2003 passed by the learned Additional Sessions Judge, Fast Track, Balotra camp at Barmer in Sessions Case No.114/2002 (9/2002) may kindly be quashed and set aside consequently acquitting the appellant accused from the charges framed against her.”

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The matter pertains to an incident that occurred in the year 2002 and the present appeal has been pending since 2003.

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Vide impugned judgment dated 5.5.2003 the learned Additional Sessions Judge, Fast Track, Balotra Camp at Barmer in Sessions Case No.114/2002 (9/2002) convicted accused-appellant for the offence under Section 306 IPC and sentenced to undergo

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(2 of 7)

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[CRLA-533/2003]

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five years rigorous imprisonment with a fine of Rs.1000/- in default of payment of fine, further to undergo three months rigorous imprisonment.

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Mr. Chaitanya Gahlot, learned counsel for the accusedappellant submits that the present appellant is wife of the deceased and the allegations is that she was forcing her husband to get transferred at her native place. 5. Learned counsel for the accused-appellant submits that appellant was a young lady at the time of the incident, aged only about 22 years. Learned counsel further submits that the appellant has now remarried and trying to settle herself; any kind of continuance of custody or sentence would completely throw her married life out of gear.

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Learned counsel for the accused-appellant submits that the accused-appellant does not have any criminal antecedents to his discredit. Learned counsel also submits that there was a delay in lodging the FIR.

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Learned counsel for the accused-appellant makes a limited prayer that in the aforesaid factual matrix and while keeping into consideration that the appellant being a lady and there are no criminal antecedents against her, the benefit of Section 4 of the Probation of Offenders Act, 1958 be extended to the present appellant.

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Learned counsel for the accused-appellant further submits that that the maximum punishment under Section 306 of IPC is up to 10 years and thus, Section 4 of the Probation of Offenders Act, 1958 will operate in the present case, in case the Court exercises its jurisdiction to do so.

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(3 of 7)

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[CRLA-533/2003]

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Learned counsel for the accused-appellant further submits that the sentence awarded to the accused-appellant was suspended by this Hon’ble Court vide the order dated 13.05.2003 passed in S.B. Criminal Misc. Bail Application No.579/2003 and thus, she is on bail. 10. Learned counsel for the accused-appellant however, makes a limited prayer that the accused-appellant may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 ( hereinafter referred to as ‘the Act’ ).

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“4. Power of court to release certain offenders on probation of good conduct.—

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(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.

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(4 of 7)

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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.

(3)…

(4)…

(5)... ”

On the other hand, learned Public Prosecutor opposes the present appeal and submits that looking to the overall facts and circumstances of the case and the well reasoned speaking order passed by the learned court below, the accused -appellant is not entitled for any indulgence by this Court.

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Heard learned counsel for the parties as well as perused the record of the case.

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In Arvind Mohan Sinha Vs. Amulya Kumar Biswas

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(1974) 4 SCC , the Hon’ble Apex Court observed as under:-

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“ The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society .

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In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the novice who strays into the path of crime ought, in the interest of society, be treated as being socially sick. Crimes are not always rooted in criminal tendencies and their origin may lie in psychological factors induced by hunger, want and poverty. The Probation of Offenders act recognises the importance of environmental influence in the commission of crimes and prescribes a remedy whereby the offender can be reformed and rehabilitated in society.”

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(5 of 7) [CRLA-533/2003]

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14. In Brij Lal Vs. State of Rajasthan RLW 2022 Raj 945 , a

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Coordinate Bench of this Court observed as under:-

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“ Under Section 4 of the Probation of Offenders Act nature of offence is one of the major-criteria for determining whether benefit of this provision should be given to the concerned offender or not. His age would be another relevant factor and the circumstance in which the offence was committed may be 3rd important consideration... ”

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14.1 In Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC

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198 , while reiterating the ratio decidendi laid down in Dalbir Singh Vs. State of Haryana, (2000) 5 SCC 82 , the Hon’ble Apex Court observed as under:

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“… The Court has further opined that though the discretion as 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...”

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14.2 In Lakhvir Singh and Ors. Vs. The State of Punjab and Ors. (2021) 2 SCC 763 wherein the Hon’ble Apex Court of India, with regard to the application of the Probation of Offenders Act, 1958 vis-a-vis those Acts wherein a minimum sentence of imprisonment has been prescribed by the legislature, observed as under:-

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“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 1 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

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(6 of 7)

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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 v. Bahubali (1979) 2 SCC 279. It was opined that the Act may not apply in cases where a specific law enacted after 1958 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.5 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 decisions 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 Indian Penal Code, the offence in the present case . In fact, the observation made in Joginder Singh v. State of Punjab ILR (1981) P & H 1 are in the same context.”

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This Court is conscious of the fact that Section 306 IPC is punishable with a maximum imprisonment up to ten years, therefore, Section 4 of the Act of 1958 will apply in the present case.

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This Court observes that there is no material on record that the accused-appellant has any criminal antecedents. Thus, the accused-appellant is entitled to the benefit under the Probation of Offenders Act, 1958.

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16.1 Thus, this Court, after taking into due consideration the legislative intent of the Act and the decisions rendered by the

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(7 of 7)

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[CRLA-533/2003]

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Hon’ble Apex Court in Arvind Mohan (supra) , Mohd. Hashim (supra) and in Lakhvir Singh , and by this Hon’ble Court in Brij Lal (supra) deems it appropriate to extend the benefit of the Act to the accused-appellant.

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Resultantly, the present appeal is partly allowed. While maintaining the conviction of the present accused-appellant for the offence under Section 306 IPC, as recorded by the learned Court below in the impugned judgment, this Court interferes only with the sentence part of the said judgment, and directs that the appellant shall be released on probation, under Section 4 of the Act, upon her furnishing a personal bond in the sum of Rs.50,000/- and two sureties in the sum of Rs.25,000/- each to the satisfaction of the learned trial court with a further undertaking that she shall maintain peace and good behaviour for a period of six months and shall not repeat the offence. The appellant is on bail. She need not surrender. Her bail bonds stand discharged accordingly. All pending applications stand disposed of. Record of the learned court below be sent back forthwith.

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(DR.PUSHPENDRA SINGH BHATI), J.

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22-Nirmala/-

Smt. Sumati v. State

Case brief

What is this about?

What did the court decide?

Smt. Sumati v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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