Sita Ram Chandu Lall vs Malkiat Singh

Chopra, J.—In this case the Respondent Malkiat Singh was convicted by Magistrate I Class, Sangrur (with enhanced powers u/s 30, Code of Criminal Procedure) under Sections 220 and 342, IPC and was released u/s 562, Code of Criminal Procedure on probation of good conduct on-entering into a bond of Rs. 1000/- with one surety for one year. The order was maintained by Sessions Judge, Sangrur, in revision by Sita Ram complainant. Sita Ram now comes in revision to this Court.

When this revision was admitted Malklat Singh Respondent was directed "to show cause why he should not be sentenced to imprisonment or fine or both". In response to this notice, Shri Jagan Nath, learned Counsel for the Respondent has taken me through the facts of the case with a view to show that the conviction itself was not justified and is liable to be set aside.

His contention is that since a notice has been issued to the Respondent u/s 439(2), Code of Criminal Procedure, the Respondent is entitled "to show cause against his conviction" as well, as provided by Sub-section (6) of the Section.

Section 439 (2) says:

No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either person ally or by pleader in his own defence.

and its Sub-section (6) lays down:

Not withstanding anything contained in this section, any convicted person to whom an opportunity has been given under Sub-section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.

Where a notice for enhancement of seethe is issued the accused is entitled to show cause against his conviction by attacking'' the findings of facts in the same manner and to the same extent in which he could have done if he had appealed against his conviction. But Sub-section (6) is confined to a particular notice issued to the accused under Sub-section (2).

It does not apply to every kind of notice under Sub-section (2). It presupposes that the accused has not only been convicted but has been sentenced as well, and notice for enhancement of sentence has been issued. Enhancement of sentence presumes that there is a sentence to be enhanced.

Where a person, though convicted, is directed to be released on probation of good con duct u/s 562, the Court does not pass a sentence. On the other hand, what Section 562, Code of Criminal Procedure expressly provides is that

the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond &c. &c" If in such a case a notice is issued calling upon the accused to show cause why a sentence be not passed against him, as in the present case, it cannot be said that the Court is going to enhance the sentence already passed within the meaning of Section 439(6), so as to entitle the accused to be heard on merits of the case. The present is in fact a notice u/s 562 (3) and hence would not be covered by Section 439(6). Malklat Singh Respondent cannot, therefore be allowed to regulate the findings of fact arrived at by the courts below.

In spite of it, I have heard Shri Jagan Nath on facts as well. He raises the very same points which have been elaborately discussed and decided against him by the trial court as well as by the Sessions Judge. It would be an unnecessary repetition to deal with every one of them once again, since I am in full agreement with their findings. It is further contended that neither of the Courts below gave a clear finding, that Malkiat Singh accused kept Sita Ram complainant in illegal confinement "corruptly or mall piously", and this being a necessary ingredient of an offence u/s 220, IPC, conviction of the Respondent for that offence is against law and liable to be set aside.

It is correct that the actual words of the section "corruptly or maliciously" have not been used, but, on a consideration of all the facts of the case, the learned trial Magistrate did express his view that the action of Malkiat Singh Respondent in going to the mandi, arresting Sita Ram there and taking him hand-cuffed through the bazar was simply to put pressure upon him to come to terms with one Bhagwati Prasad. It has also been found that the offence for which Sita Ram was arrested was a bailable one.

The bail, though offered, was not accepted. The learned Sessions Judge concurred with these findings. Bhagwati Prashad was complainant in the case in which Sita Ram was arrested and Malkiat Singh was a tenant of Bhagwati Par-shad. The unlawful commitment to confinement was willful, without any excuse and with a view to put pressure on Sita Ram to come to terms with Bhagwati Parshad, in whom Malkiat Singh was interested. In the circumstances, Malkiat Singh can safely be said to have acted "maliciously". The contention is consequently rejected.

Now, coming to the merits of this petition, Malkiat Singh Respondent is in police ser vice and at the particular time he was posted as. an A.S.I. at police-station Sangrur. On 12-5-1953, Bhagwati Parshad lodged a report at the said police-station u/s 341, IPC complaining that Sita Ram and one Bhagwan Das did not allow him to enter a part of his own house and forcibly. turned him out of the same. A portion of this house was leased to Sita Ram for some time but, it was alleged that he had vacated it and passed on its possession to Bhagwati Parshad.

Sita Ram, on the other hand, asserted that he still continued to remain in possession of the house as tenant and that for some time past the landlord was depriving him of the usual amenities with a view to force him to vacate it. The dispute gave rise to cross-cases between Bhagwati Parshad and Sita Ram. The former brought a complaint u/s 145, Code of Criminal Procedure and the latter presented an application u/s 10, Rent Control Ordinance. And then, Bhagwati Parshad lodged the present report u/s 341, IPC on 12-5-53.

Malkiat Singh was deputed to investigate. On 14-5-53 he arrested Sita Ram and Bhagwan Dass, the two accused mentioned in the report. The offence was bail able and ball was actually offered. It was not accepted. Sita Ram and Bhagwan Das were hand-cuffed and paraded in that condition to the police-station through the "mandi. There, they were not released on bail for about an hour.

Section 562 (1), Code of Criminal Procedure consists of two parts: the first where the offender is above the age of twenty-one, and the second where the person is below that age or a woman. In the first case, the section applies if the offence for which the accused is convicted is punishable with imprisonment for not more than seven years; and the second, if the offence is not punishable with death or transportation for life.

Even where these conditions are fulfilled the person convicted cannot, as of right, claim the benefit of the provisions of this section. The fact that it is his first conviction would not alone be sufficient. The discretion is to be exercised having regard to the circumstances in which the crime was committed and the age, character and antecede-dents of the offender. It needs a considerable sense of responsibility. Misplaced leniency and sympathy for the accused are matters which should-never be allowed to come in and influence the court''s mind. Otherwise, the very object for which punishments are provided would be defeated.

In the present case the grounds relied up on by the trial Magistrate are (1) that the accused is a young man of less than twenty years, and (2) that he "appears to have committed the of fence due to his not being experienced". The learn., ed Sessions Judge dismissed the complainant''s petition for revision with the following observations:

M. Malkiat Singh is a young man of 20 years of age and an Assistant Sub Inspector of Police. It was not conducive in the interest of justice that a young man who probably had committed a lapse just due to inexperience, should be sent among hardened criminals and jeopardize his career for all times to come.

There is nothing on the record regarding the actual age of the accused. If the remarks were based on observation, the age has surely been under estimated. On my inquiring the Respondent, he gave his date of birth as 27-4-1927. He is thus above twenty-eight now and was more than twenty-six at the time of the incident. This is exactly what he appears to be.

His case, if other conditions are satisfied, would, therefore, fall under first part of Section 562(1), Code of Criminal Procedure and not the second as contemplated by the courts below. That the offence was committed due to lack of experience is contrary to the learned Magistrate''s own findings on the main features of the case, one of which is that there was a particular motive behind the Respondent''s action.

The additional ground taken into consideration by the learned Sessions Judge fails to impress me. The Respondent is long past that age. He is well educated and sufficiently experienced to guard himself against the influence of "hardened criminals".

To maintain law and order is the principal function of a police Officer. It is simply reprehensible if he himself takes the role of a lawbreaker and acts in flagrant disregard of his duties as a public servant. Malkiat Singh Respondent did no less. He was actuated by youthful spirit and false notions of his newly gained authority. The high-handed manner in which he acted, leaves no doubt that he did not deserve to be given the benefit of Section 562(1), Code of Criminal Procedure and the discretion was improperly exercised.

The next question is whether it should be interfered with in revision and at this stage. The trial in this case was very much prolonged, it took almost one year. Six months more were taken in the appellate court. The period of probation has long expired. Section 562, Code of Criminal Procedure certainly applied in every respect, except the circumstances and the manner in which the offence was committed. It is only a case where, in my view, the discretion has been improperly exercised and where a sentence of imprisonment or fine or both might| well have been awarded.

There are cases in which the High Court refused to interfere even though Section 562 did not apply and the discretion was illegally exercised. In - '' AIR 1925 673 (Oudh) it was held that the fact that the person given the benefit of Section 562 was discovered later to be a previous convict, would not of itself be a sufficient ground for interference in revision.

In ''Abdul v. Emperor'' 11 Cri LJ 389 (Lah) . (B), Johnstone J., declined to interfere in revision with an order u/s 562, Code of Criminal Procedure although the order had been passed in a case to which the section was wholly inapplicable In - ''Emperor v. Bhagat Singh AIR 1933 Lah 393 (C), three persons were found guilty u/s 457 IPC for breaking into a house and stealing property. and were dealt with u/s 502. On a reference by the Sessions Judge, Harrison J., did not deem it necessary or advisable to interfere even though the order was illegal and the section had no .application, In - ''Emperor v. Khairati Lal AIR 1928 Lah 926 (D), ah improper order u/s 562,'' Code of Criminal Procedure was not set aside because of the lapse of time.

In view of these facts, I confine myself with the observations already made and decline to interfere. The petition for revision is dismissed.