Munni vs State of Rajasthan and Others

Prashant Kumar Agarwal, J—By way of this Criminal Misc. Petition under Section 482 Cr.P.C., the complainant-petitioner has challenged the order dated 22.11.2013 passed by the Additional Sessions Judge No. 1, Hindaun City (District Karauli) in Criminal Appeal No. 14/2011 whereby the learned Appellate Court during the course of National Lok Adalat extended benefit of probation to the accused-respondents and set aside the order of sentence dated 09.07.2010 passed by the Judicial Magistrate No. 1, Hindaun City in Criminal Case No. 82/2009 whereby learned trial Court after convicting the respondents for offences under Sections 323 and 452 IPC, setenced each of them for rigorous imprisonment for one year and fine of Rs. 1,000/- for offence under Section 323 IPC and rigorous imprisonment for three years and fine of Rs. 3,000/- for offence under Section 452 IPC.

The moot question to be considered and decided in this petition is whether benefit of Section 4 of the Probation of Offenders Act, 1958 (hereinafter to be referred as "the Act") can be extended to an accused against whom another FIR for some offence has been registered or who has been convicted for an offence in another case and to whom such benefit has already been extended.

Brief relevant facts for the disposal of this petition are that the accused-respondents alongwith to co-accused faced trial for offences under Sections 323, 354 and 452 IPC in Criminal Case No. 82/2009 and learned trial Court i.e. Judicial Magistrate No. 1, Hindaun City (District Karauli) vide judgment dated 09.07.2010 convicted the respondents for offences under Sections 323 and 452 IPC and sentenced each of them as already stated. Learned trial Court declined to grant benefit of probation to the respondents by the reason that against them another FIR was said to have been registered and respondent-Shri Raj Kumar has already been convicted in a case. It was also observed by the learned trial Court that the respondents have been found guilty of inflicting injuries to a woman after making forced entry in her house. Respondents challenged the judgment and order of the trial Court by way of Criminal Appeal No. 14/2011 and learned appellate Court during the course of National Lok Adalat while affirming and maintaining the conviction of the respondents extended benefit of Section 4 of the Act to them with the condition that each of them would deposit Rs. 5,000/- as prosecution expenses under Section 5 of the Act. Dissatisfied with the grant of benefit of probation to the respondents, Smt. Munni Devi complainant is before this Court by way of this petition with a prayer to quash and set aside the impugned order dated 22.11.2013 whereby learned appellate Court granted benefit of probation to the respondents.

It is not in dispute that accused-respondent-Shri Raj Kumar alongwith two other accused faced trial in another Criminal Case No. 448/1999 for offences under Sections 323, 324,325 read with Section 34 IPC and learned trial Court i.e. Additional Chief Judicial Magistrate, Hindauncity in that case vide judgment dated 17.01.2004 convicted the respondent-Shri Raj Kumar for offences under Sections 323, 324 and 325 IPC and while refusing to extend benefit of probation to him awarded sentence of simple imprisonment for three months and fine of Rs. 300/- for offence under Section 323, simple imprisonment for six months and fine of Rs. 500/- for offence under Section 324 IPC and simple imprisonment for two years and fine of Rs. 1,000/- for offence under Section 325 IPC. The judgment and order dated 17.01.2004 was challenged by the respondent-Shri Raj Kumar by way of Criminal Appeal No. 4/2004 and learned appellate Court i.e. Additional Sessions Judge, Hindauncity vide judgment and order dated 02.03.2005 partly allowed the appeal filed by the respondent and while convicting him for offences under Sections 323 and 325/34 IPC extended benefit of probation and imposed upon him Rs. 1,500/- as prosecution expenses under Section 5 of the Act. The order dated 02.03.2005 was challenged by the complainant of that case Shri Jay Devi by way of S.B. Criminal Revision Petition No. 429/2005 before this Court and the learned Single Bench vide order dated 25.07.2007 dismissed the revision petition with observation that no previous conviction is alleged against the respondent. This fact has also not been disputed on behalf of the respondents that against both of them another FIR has been registered as mentioned in the judgment and order dated 09.07.2010 passed by the trial Court in the present case. It is to be noted that although respondents were duly served and power was also filed on their behalf, but on the date of hearing i.e. 06.08.2015 no one appeared before the Court on behalf of them.

Sub-section (1) of Section 4 of the Act provides that:--

"(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."

Thus, it is clear that character of the accused is also one of the factors to be considered by the Court while extending benefit of probation to him. Looking to the object for which the aforesaid provision has been made, it is essentially applicable to first offender only not having been previously convicted for any offence i.e. benefit of probation under Section 4 of the Act cannot be extended to a person who has already been convicted for an offence in a previous case or to a person to whom such benefit has already been granted in a previous case. Merely because Section 4 of the Act does not bar application of such benefit to a previous convict, it cannot be construed to mean that such benefit can be extended to a previous convict also or to a person whom such benefit was granted in a previous case as the object of the provision is intended to enable the Court to deal leniently with first offenders guilty of not serious offences to carry out the object of reformation and give the accused person a chance of reformation which he would loss by being incarcerated in prison. The fact of a previous conviction of the accused has a direct bearing upon the question of punishment.

In the present case, it is not in dispute that accused-respondent-Shri Raj Kumar was convicted by the Additional Chief Judicial Magistrate, Hindauncity in Criminal Case No. 448/1999 vide judgment dated 17.01.2004 for offences under Sections 323, 324 and 325 read with Section 34 IPC and learned trial Court in that case refused to extend benefit of probation to him. It is also not in dispute that appeal being filed in the form of Criminal Appeal No. 4/2004, learned Additional Sessions Judge, Hindauncity vide judgment and order dated 02.03.2005 partly allowed the appeal filed by the respondent-Shri Raj Kumar and held him guilty for offences under Sections 323 and 325/34 IPC and by extending benefit of probation ordered him to deposit Rs. 1,500/- as prosecution cost under Section 5 of the Act. In the present case, learned trial Court while considering the question of granting benefit of probation to the respondent specifically observed that the respondent has already been held convicted in a previous case and one more FIR has been registered against him and with these observations refused to grant him benefit of probation, but the learned appellate Court ignoring the aforesaid material and important fact was pleased to extend benefit of probation to him probably by the reason that the matter was placed before the appellate Court during the course of National Lok Adalat but it was wrong on the part of the appellate Court to ignore such a relevant and important fact even during the course of Lok Adalat. I am of the considered view that the learned appellate Court has committed illegality and impropriety by granting benefit of probation to respondent-Shri Raj Kumar in the present case requiring interference by this Court while exercising inherent powers conferred upon it under Section 482 Cr.P.C. So far as respondent-Shri Shiv Singh is concerned, it is not even the submission by the petitioner herself that he was convicted in a previous case or benefit of probation was granted to him by a competent Court in a previous case. At the most it can be said that one more FIR has been lodged against him, but in the absence of copy of FIR made available on record, nature of offence for which such FIR has been registered is not disclosed. I am of the considered view that benefit of probation cannot be declined to an accused merely because another FIR has been registered against him.

Consequently, the Criminal Misc. petition is partly allowed and the order dated 22.11.2013 passed by the Additional Sessions Judge No. 1, Hindauncity (District Karauli) in Criminal Appeal No. 14/2011 whereby learned appellate Court during the course of National Lok Adalat extended benefit of probation to respondent-accused-Shri Raj Kumar is quashed and set aside, but so far as accused-respondent-Shri Shiv Singh is concerned, the order is upheld and affirmed and to that extent the petition is dismissed. The learned appellate Court is directed to restore the aforesaid appeal to its original number to the extent of respondent-accused-Shri Raj Kumar and decide it afresh on merit after affording opportunity of hearing to both the parties without being influenced in any manner by its previous order dated 22.11.2013 or by any observation made by this Court during the course of present order. As respondent-accused-Shri Raj Kumar was represented by a counsel before this Court, he is directed to appear before the appellate Court on 26.08.2015.