Avdesh Kumar vs State NCT of Delhi

S.P. Garg, J.

CRL. M.A. No. 10238/2014 (Delay in filing review petition) & CRL. M.A. No. 10239/2014 (Delay in re-filing review petition)

For the reasons mentioned in the applications for condonation of delay in filing and re-filing of the review petition, the delay is condoned.

The applications for condonation of delay stand disposed of.

Review Petition No. 311/2014.

The petitioner-Avdesh Kumar seeks review of judgment and order dated 20.12.2013 passed by this Court in Crl. A. No. 648/2000 whereby he was held guilty for committing offence punishable under Section 395 IPC and was awarded R1 for three years. Learned Senior Counsel urged that mandatory provisions of the Probation of Offenders Act, 1958 were not taken into consideration while awarding the sentence. The petitioner was below 21 years of age on the day of incident and as per Section 6 of the Probation of Offenders Act, considering his antecedents, he could not have been awarded sentence to undergo ''imprisonment''. Reliance has been placed on the authorities: Nar Singh Pal Vs. Union of India and Others, ; Masarullah Vs. State of Tamil Nadu, ; Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others, , and ''Kunhayammed and others vs. State of Kerala and another'', (2006) 6 SCC 359. Perusal of the file reveals that Bhulley Singh (A-1), Arun Kumar @ Munna (A-2) and Vimal Chandra (A-5) were held guilty for committing offence 395 read with Section 397 IPC and were awarded R1 for seven years each. Avdesh Kumar (the present petitioner) (A-3) and Suresh Kumar (A-4) who were also found guilty under Section 395 IPC were awarded R1 for three years each. Suresh Kumar (A-4), in addition, was convicted under Section 25 of the Arms Act.

Trial Court record reveals that the convicts A-1 to A-5 committed dacoity at House No. E-6, INA Colony where inmates Sujan Kumar Saraswati and his wife Mala Saraswati were present with their children there. They were robbed of their valuable articles. A-1, A-2 and A-5 were armed with deadly weapons that time. It speaks volume of the gravity of the offence.

It is relevant to note that the present petitioner had challenged the judgment and order of this Court dated 20.12.2013 before the Hon''ble Supreme Court. However, the SLP preferred by the petitioner was dismissed. Apparently, the Supreme Court did not interfere in the order on sentence.

Order dated 17.10.2000 on sentence passed by the learned Trial Court reveals that provisions of Section 360 Cr.P.C. and Probation of Offenders Act were taken into consideration at the time of awarding sentence to the convicts. It was specifically noted by the Trial Court that the petitioner was a young boy at the time of the commission of the offence and was a practicing lawyer at the time of sentence. His father, a retired Income Tax Officer, had enrolled himself as a lawyer. It was further noted that the petitioner belonged to a respectable, educated family. He had a small child to maintain after his marriage. However, considering the gravity of the offence, the Trial Court awarded R1 for seven years to the petitioner.

This Court also while considering the alternative argument of the petitioner to take lenient view took into consideration the mitigating circumstances and altered/modified the substantive sentence from R1 seven years to R1 three years.

Section 6 of the Probation of offenders Act, 1958 rules out the benefit of the provisions of the Act being given to a person who is guilty of having committed an offence punishable with life or death. Needless to say, Section 395 IPC for which the petitioner has been convicted is punishable with ''Imprisonment for Life''. The offence committed is serious in nature and it is not a fit case to release the petitioner on probation.

Considering the facts and circumstances of the case and dismissal of SLP preferred against the impugned judgment by the Hon''ble Supreme Court, I find no sound reasons to review the judgment which has been passed on merits. The review petition is dismissed.