Laxmi Narain vs Ram Chander

B.S. Yadav, J.

The facts leading to this revision petition are that the present petitioner Laxmi Narain had filed a complaint under sections 330 and 323 of the Indian Penal Code (for short the Code) against the present respondent and others in the Court of the Chief Judicial Magistrate, Bhiwani. The brief allegations, according to the complaint, were that on 3rd May, 1980 the coaccused of the present respondent Ram Chander, who at the time was posted as S.H.O., City Bhiwani, had arrested one lady and a man, in connection with smuggling of gold. The shop and the house of the complainant were also searched, but nothing incriminating was recovered. The complainant, was, however, arrested and brought to the Police Station, Bhiwani. There the respondent tortured him to extort money. After obtaining money, the respondent handed over the complainant to his coaccused who were Inspectors of Central Excise. The coaccused of the respondent took the complainant in a room of the Police Station and detainedhim there and gave him beating.

After recording preliminary evidence, the learned Magistrate summoned only the present respondent. His coaccused were not summoned as there was no sanction to prosecute them. After completion of the trial, the learned Chief Judicial Magistrate convicted the respondent under section 330 and 323 of the Code and gave him benefit of Probation of Offenders Act, 1958 (for short the Act) and released him on probation for one year.

Aggrieved against the said order, the respondent, as well as the complainant (i.e. present petitioner), filed appeals which were heard by learned Additional Sessions Judge Bhiwani. The respondent's appeal was against his conviction while the petitioner's appeal was for awarding sentence to the respondent. The learned Sessions Judge dismissed both the appeals. The complainant has now come to this Court in revision.

The learned counsel for the petitioner argued that the learned trial Court should not have released the respondent on probation with out calling for the report of the probation Officer as subsection (2) of section 4 of the Act is mandatory. He has cited Rattan Lal v. The State of Punjab, AIR 1965 SC 444. In that case subsection (2) of section 6 of the Act had come for interpretation and it was remarked :

"Briefly stated the calling for a report from the Probation Officer is a condition precedent for the exercise of the power under S. 6(1) of the Act by the Court. We think that in the circumstances of the case, the best course is to remand the matter to the High Court to make an order after complying with S. 6(1) of the Act."

The learned counsel for the petitioner also relied upon State of Punjab v. Naib Singh, 1979 CLR (Pb. & Har.) 264 where a Division Bench of this Court remarked :

"..........We are of the opinion that the recourses taken by the trial Magistrate to the provisions of the subsection (1) of section 4 of the Act without having called for the report of Probation Officer thereby not duly complying with the provisions of subsection (2) of S, 4 of the Act, vitiates the order of probation. The provisions of subsection (2) of section 4 of the Act, are as follows :

`4(2). Before making any order under subsection (1), the Court shall take into consideration the report if any of the Probation Officer concerned in relation to the case''.

The said provisions are mandatory. The reading of the section 4 of the Act would leave no doubt in our mind that if the power conferred by subsection 1 of S. 4 of the Act, has to be exercised, the Magistrate has no option but to send for the report of the Probation Officer and then to take the same into consideration before deciding whether the power under subsection (1) of section 4 of the Act, should be exercised or not."

In the present case, the learned trial Court did not call for the report of the Probation Officer before granting probation to the respondent. The learned lower Appellate Court also did not have the report of the Probation Officer before it confirmed the orders of the learned trial Court. In view of the rulings quoted above, the present revision is liable to be accepted on this short ground.

The learned counsel for the respondent argued that the petitioner's remedy against the order of the learned trial Court was to file an application in the Court of Session and therefore, the present revision is too much belated. It is not necessary to go into the question, which remedy was open to the petitioner. Suffice it to say that he filed an appeal against the order of the trial Court in the Court of Sessions and that appeal was entertained. In the Court, the present respondent did not raise an objection that the petitioner's remedy was to file revision in this Court. The learned lower Appellate Court dismissed the appeal of the present petitioner on 19th August, 1981. The present petition was filed on 12th November, 1981. Some time must have been taken by the petitioner in obtaining the copies. As the petitioner bona fide prosecuted the appeal in the lower Appellate Court, there is sufficient ground for condoling the delay in filing the revision. Hence, the above argument of the learned counsel for the respondent is rejected.

For the foregoing reasons, I accept the revision petition and set aside the orders of the learned Courts below, so far as those relate to the granting of probation to the respondent and remand the case to the learned trial Court.

The trial Court is directed to proceed further in accordance with law. The parties are directed to appear before the trial Court on 26th February, 1984.