Shri Dandi Nath vs The State of Assam

S.N. Phukan, J.—This revision petition is directed against, the judgment and order of the learned Sessions Judge, Kamrup, Guwahati dated 8.1.85 passed in C.A. 20(K-4) of 1983 arising out of R. Case No. 3912/81. By the aforesaid judgment and order the learned Sessions Judge upheld the conviction and sentences imposed on the accused/Petitioner and hence the present petition.

The occurrence took place on 12.9.81 and it was alleged that the informant Amrit Chandra Nath was wrongfully restrained by the two accused persons, namely, Dandi Nath and Tarun Nath and they tried to commit murder. From the materials on record, I find that there was a previous enmity between the parties. Though the police submitted chargesheet u/s 307 IPC, the learned Sessions Judge remitted the case back to the learned trial Court with a direction to frame charge u/s 352/34 IPC. After considering the evidence of 5 witnesses for the prosecution and the statements of the two accused persons, the learned trial Court found both the accused persons guilty under the aforesaid Sections, convicted them accordingly and sentenced each of them to pay a fine of Rs. 100/- (Rupees one hundred) only each. Being aggrieved, an abortive appeal was filed. The present petition has been filed only by the accused Dandi Nath.

Mr. J.M. Choudhury, learned Counsel for the Petitioner, has urged only one point, viz., this Court may consider invoking of the provisions of Probation of Offenders Act, 1958, for short the Act, in view of the fact that the present Petitioner is a school-teacher and if the conviction is maintained it may affect his service career. Mr. Chakravarty learned Public Prosecutor urged two points, viz., that the Petitioner is more than 21 years and that the facts of this case do not call for invoking of the provisions of the Act.

The relevant provision is Section 4 of the Act which empowers the Court to release offenders on probation of good conduct. I do not find that the powers under the said Section cannot be invoked if the person is more than 21 years old. So the first contention of Mr. Chakravarty has no force.

In Ishar Das Vs. The State of Punjab, the Apex Court held that Sub-section (1) of Section 4 of the Act makes no distinction between persons of the age of more than 21 years and those of the age of less than 21 years . It was also held that on the contrary, the said Sub-section is applicable to persons of all ages subject to certain conditions which have been specified therein. The Apex Court also held that the non-obstantc clause contained in the said Section 4 points to the conclusion that the provisions of the Act would have overriding effect and shall prevail if other conditions prescribed are fulfilled.

The conditions precedent for invoking the provisions of Section 4 of the Act ere,: if,

(1) the accused is found guilty of having committed an offence not punishable with death or imprisonment of life;

(2) the Court finding him guilty is of the 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, and

(3) the accused in such an event enters into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding 3 years as the Court may direct, and in the meantime to keep the peace and be of good behaviour.

In Rajbir Vs. State of Haryana, their Lordships allowed the Appellant the benefit of the Proton of Offenders Act, though he was convicted u/s 323 IPC (SIC) the sentence was to undergo imprison meat for six months. (SIC) was also held that though the Appellant was convicted, in (SIC) of the direction that he be released ''on probation of good conduct it should not affect his service as a government servant.

In the case at hand, the sentence was only a fine of Rs. 100/- (Rupees one hundred). Admittedly, the Petitioner is school-teacher and if be is not allowed the benefit of the the poor teacher, will lose his service. On perusal of the (SIC) of the learned Court, I find the following observation. "Hence although there are innumerable contradictions and serial comissions before the police, these were not brought in to draw an inference or to disbelieve the prosecution (SIC). It appears prima facie that the defence, was not pro conducted, and as such, the Petitioner has to suffer and Mr. Choudhury has not challenged the conviction, I also not enter into the question of validity or otherwise of the conviction. Be that as it may, it appears to me that proper defence was not available to the Petitioner. I donot accept the contention of the learned Public Prosecutor that the offence is a serious one. The maximum sentence that can be imposed u/s 352 IPC is imprisonment of three months or fine of Rs. 500/- (Rupees five hundred) and the offence is a non-cognisable and bailable one.

From what has been stated above, I am of the view that this is a fit case for releasing the Petitioner 0n probation of good conduct as provided in the provisions of the Act. As I proposed to invoke the provisions of the Act in the instant proceeding, the conviction of the accused/Petitioner shall not affect his service.

I, therefore, direct the learned Chief Judicial Magistrate Kamrup, Guwahati to release the accused/Petitioner in G.R. Case No. 3912/81 by following the provisions of the Act on furnishing a bond of Rs. 2000/- (Rupees two thousand) for a period of six months from the date execution.

With the above directions, the petition is disposed of.