Court on its own Motion vs Mohinder Singh

K.S. Tiwana, J.—In this case, this Court suomotu, initiated this revision by issuing notice to Mohinder Singh respondent, who was a Head Constable in the Punjab Police to show cause as to why the order of the learned Additional Session Judge, Ludhiana dated 9th of September, 1981, releasing him on probation under section 4 of the Probation of Offenders Act, 1958, hereinafter referred as the act, be not set aside and in lieu there of sentence awarded to him in accordance with law.

The facts of the case are that on March 27, 1978 Captain Naresh Inder Singh had gone to the Mini Secretariat, Ludhiana, on his motorcycle, Royal Infield, bearing Registration No. ADR6675. He parked the motor cycle outside the building of the Mini Secratariate and went inside in connection with some official work. On his return he saw his motor cycle missing. He made a report about this theft at Police Station Civil Lines, Ludhiana.

On 31st of March, 1978, Ajiab Singh Sub Inspector of the c.I.A. Staff was checking motor vehicles at Chowk Bhaiwala in the city of Ludhiana. At about 10 a.M. the respondent came to that chowk driving a motor cycle. The Registration No. was not displayed on the number plate the words "police" and "M.S. Gill were freshly painted. On suspicion,the respondent was stopped. The engine and chassis No. of the motorcycle in possession of the respondent was tallied with the machine reported to be stolen vide F.I.R. No. 196 dated 27th of March, 1978 of Police Station Civil Lines Ludhiana. Mohinder Singh respondent had no documents with him to justify the possession of the motor cycle with him. Ajaib Singh SubInspector recovered the stolen motorcycle from Mohinder Singh respondent.

After investigation, the police challenge Mohinder Singh respondent under section 411 of the Indian Penal Code. At the trial, the respondent admitted the recovery of the stolen motorcycle from him, but gave the date of recovery as 30th of March, 1978. He stated that he wanted to purchase the motorcycle from Ved Parkash alias Pappu, mechanic of Noor Mahal. He got the motorcycle from Pappu to have a try when it was recovered from him.

After trial, Mohinder Singh respondent was convicted of this offence and sentenced to undergo rigorous imprisonment for two years pay a fine of Rs. 2,000/. In default of payment of fine he was further sentenced to undergo rigorous imprisonment for six months. Mohinder Singh did not feel satisfied with he order of conviction and preferred criminal Appeal No. 581/127 of 1980 Mohinder Judge Singh v. The State, before Shri Gurjit Singh Sandhu Additional Sessions Judge, Ludhiana. Before the learned additional Sessions Judge, the order conviction was not challenged on behalf of the Sessions Judge, the order conviction was not challenged on behalf of the respondent Pleading that Mohinder Singh was not a previous convict, prayer was made on his behalf to release him on probation. The learned Additional Sessions Judge accepted the prayer on his behalf and maintaining the order of conviction directed his release on probation under section 4 of the Act to maintain peace and good behaviour for one year on his executing a bond in the amount of Rs. 5,000/ with one surety.

Because of conviction in theft case, Mohinder Singh was dismissed from service by the police authorities. He challenged the order of dismissal through Civil Writ petition No. 1334 of 982 in this court which was dismissed on 22nd of March, 192. After that dismissal, S \\s. Sandhawalia, Chief Justice, who was heading the Bench hearing the petition, issued this notice dated 29th of MAy, 1982. suomoto there is no dispute about the powers of the High Court to issue notice in case of inadequate of sentence at its own if the State has not moved a revision for enhancement of sentence. In Nadir Khan v. The State (Delhi Administration) Unreported Judgments (SC) 1975, Page 549, it has been held:

"It is well known and has been ever recognised that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. The High Court as an effective instrument for administration of criminal justice keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounded duty to suo moto act where there is abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate court prompt remedial action on the part of the High Court for the ultimate social good of community, even through the State may be slow or silent in preferring an appeal provided for under the new Code. The High Court in a given case of public importance e.g. in now too familiar cases of food adulteration, reacts to public concern over the problem of newspaper reports disclosing imposition of grossly inadequate sentence upon such offender. This position was true and exact in the old Code of 1898 and this salutary power has not been "denied by parliament under the new Code has expressly given a right to the State under section 377, Criminal Procedure Code, to appeal against inadequacy of sentence which was not there under the old Code. That however does not exclude revisional jurisdiction of the High Court to act suo moto for enhancement of sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court."

I have gone through the file and have heard the counsel for the parties. The conviction was not challenged by Mohinder Singh before the Appellate Court. Accepting the conviction only one prayer was made on his behalf before the Appellate Court, which was for leniency of punishment asking his release on probation. The learned Additional Session Judge allowed the convict the benefit of probation under section 4 of the Act.

Section 4 of the Act has to be made use of by the courts ''having regard to the circumstances of the case including the nature of the offence and the character of the offender''. The Court has to further see if it is expedient in the interest of justice to give the convict the benefit of probation. Besides the nature of the offence, the character of the offender is a necessary element to be seen by the court before having a resort to section 4 of the Act. Character'' used as a term in the act is of a wide amplitude. To assess the character of the offender it had to be seen from which atratia of society he springs and in Case of an employee to which service he belong. When the Court is called upon to deal with an employee, then it has to see the character of that person in the back ground of the Department in which he serves. In this case it has to be seen what has to be a character of a policeman visavis public about the maintenance of law and order or the protection of the property of the public. Being a member of that force it was part of duty to protect the property of the citizens. If breaking his vow taken by him or a polcieman to protect and safeguard the property of the public, he himself turned into a thief or a receiver of a stolen property of the public, he himself turned into a thief for a receiver of a stolen property then he cannot be said to be a person having a character deserving to be favourably considered for the extension of the benefit under the Act, which he actually sought by the simple fact that he belongs to the police force he forfeits his right when convicted to the offence of such a nature to claim any such benefit. People have faith in the police. It is on this faith that they leave their valuable properties unguarded to be taken care of by this force. It the member of this force depart from their duties and degrade themselves too low and to misappropriate those properties to themselves, then chaotic situation is the likely result. In this case the respondent did something which is undeserving of the member of the police force. The registration number was obliterated from the number plate of the motor and the word, ''police was written. This word, according to the prosecution witnesses, was freshly painted. This was only done to avoid detection. The purpose for this seems to be that seeing the word police'' on the motorcycle, no one would check it This act was not done innocently but with a design to avoid detection of the crime. This type of criminal act by a policeman is not to be lightly taken by the courts, when it comes to the awarding of the punishment on a proved guilt. It cannot be said that the learned Additional Sessions Judge erred on the side of leniency, but in this case, he wrongly applied the provisions of section 4 of the Act, as the character of Mohinder Singh in the background of his service and conduct disentitled him to crave the indulgence of court the this benefit, which he actually got from that court.

I am conscious of the fact that the punishment is a matter of descreation, and the exercise of such a discretion is not normally disturbed by the High Court in revision. Trend these days tilts towards the leniency of punishment with a view to improve the behaviour of the persons accused of offences with an idea to rehabilitate them in society. In this case no purpose of such cherished principles, which brought the Act on the Statute Book can be achieved by giving this benefit of leniency to a policeman found in unexplained possession of a property stolen recently, the appearance of which he tried to change to avoid detection. The possibility cannot be ruled out that Mohinder Singh had done so while he was on duty. Even if he was not no duty, his case is not excusable. The courts will hesitate to use the provisions of the Act in favour of a policeman involved in such acts, IF the law enforcers, to whom the people look for protection themselves start stealing property, rob people assault women, then the law has to be stringent and strict in its application against them, so that it works as a deferent to other members of such force. The awarding of strict punishment to such people improves the image of law in the minds of the general public. when such an official found guilty of such a criminal offence is strictly dealt with the leniency in such cases is usually taken by the public not in good spirit. The circumstance in this case are made out for an alteration in the order under revision.

Mohinder Singh respondent was a Head Constable in the police department. The Head Constable in the police Department was riding a motorcycle, which was stolen only four days prior to its recovery by an other police official on duty. He least deserved the benefit given to him by the learned Additional Sessions Judge. Such erroneous order require to be remedied the moment they come to the notice of the High Court. The State did not agitate the matter before this court. The prayer of Shri H.S. Mann, learned counsel for Mohinder Singh respondent not to disturb the judgment of the Additional Sessions Judge, in the light of the circumstances, has no weight.

For the foregoing reasons, the order of the learned Additional Sessions Judge dated 9th of September, 1981, releasing Mohinder Singh on probation in set aside. The trial Magistrate gave good and weighty reasons in support of the sentence but those were completely ignored by the learned Additional Sessional Judge. Setting aside the order of the first Appellate Court, the order if the trial court is restored. The respondent Mohinder Singh shall undergo rigorous imprisonment for two years and pay a fine of Rs. 2,000/ and in default of payment of fine to further undergo rigorous imprisonment for six months.