Reserve Judgment
Court No. - 40
Case :- CRIMINAL REVISION No. - 473 of 1992 Revisionist :- Komal Singh Opposite Party :- State Counsel for Revisionist :- R.K. Shangloo,K K Tiwari Counsel for Opposite Party :- A.G.A.
Hon'ble Shashi Kant,J.
Heard Sri K.K. Tiwari, learned counsel for revisionist and learned A.G.A. for the State of U.P.
This criminal revision under Section 397/401 Cr.P.C. has been filed against the judgment and order dated 30.03.1992, passed by Vth Additional Sessions Judge, Jhansi in Criminal Appeal No. 101 of 1991 – Komal Singh Vs. State of U.P., whereby appeal filed by the revisionist was dismissed and the judgment and order dated 07.09.1991 passed by IInd Additional Chief Judicial Magistrate, Jhansi passed in Case No. 124 of 1990 – State Vs. Komal Singh, whereby he has convicted the accused-revisionist under Section 25 of Arms Act and sentenced him for one year rigorous imprisonment and fine of Rs.200/-, was confirmed.
Learned counsel for revisionist urged that the courts below have imposed highly excessive sentence on the revisionist, by ignoring the factual and legal background of the case. Since this is first offence of the revisionist who has no criminal antecedents/criminal history except to the present case, maximum punishment prescribed under Section 25 of Arms Act is seven years. It is further submitted that co- accused Arjun from whose possession two cartridges were recovered has been extended benefit of Section 4 of Probation of Offenders Act, 1958 (hereinafter referred to as 'Act. 1958') by the court of first instance, while revisionist has been declined the said benefit though he also has no criminal antecedents except to the case in question and probably the said benefit has been declined to the revisionist due to the fact that one country made pistol was recovered from his possession alongwith two cartridges. The appellate court has also not corrected the aforesaid mistake. The revisionist fulfill all the eligibility criterion to get benefit of Section 4 of the Act, 1958. In this view of the matter the courts below have committed manifest legal error in passing order of sentence instead of extending him benefit of Section 4 of Act. The Appellate and Revisional Courts are also empowered to pass order under Section 4 in view of the provisions of Section 11 of Act, 1958. He further urged that the judgments and orders impugned passed by the Courts below are liable to be set aside and the revisionist is entitled to be extended benefit of Section 4 of the Act, 1958.
Learned A.G.A. opposed the above contentions raised by learned counsel for revisionist, by submitting that the courts below have passed the impugned orders after taking into consideration all the evidence, material available on record, as such no interference in them is required, but he could not be able to show any material on record which may show any criminal history/antecedents of the revisionist or any fact which may dis-entitle the revisionist to provide him benefit of Section 4 of Act, 1958. He also conceded that co-accused Arjun has been extended benefit of Section 4 of Act, 1958 on the ground that he has no criminal history and only two cartridges were recovered from his possession.
Considered the rival arguments raised by learned counsel for the parties and perused the record.
On 02.04.1992, following order has been passed :
“Heard.
Admit on the question of sentence only.
Let the applicant Komal Singh, be released on bail provided he furnishes two sureties and a personal bond to the satisfaction of C.J.M., Jhansi.”
Section 4 and 11 of Act, 1958, read thus :
“4. Power of court to release certain offenders on probation of good conduct.- (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 off 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.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission off other offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.”
“11. Courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision.-(1) Notwithstanding anything contained in the Code or any other law, an order under this Act, may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision.
(2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any court trying the offender (other than a High Court), an appeal shall lie to the court to which appeals ordinarily lie from the sentences of the former court.
(3) In any case where any person under twenty-one years of age is found guilty of having committed an offence and the court by which he is found guilty declines to deal with him under section 3 or section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything contained in the Code or any other law, the court to which appeals ordinarily lie from the sentences of the former court may, either of its own motion or on an application made to it by the convicted person or the probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit.
(4) When an order has been made under section 3 or section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law:
Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the court by which the offender was found guilty.”
In the case in hand the revisionist was convicted under Section 25 of Arms Act for one year rigorous imprisonment and fine of Rs.200/-. Maximum sentence for the offence in question is seven years. The co-accused of the case has been provided benefit of Section 4 of Act, 1958 on the ground that he has no criminal antecedents and only two cartridges were recovered from his possession. So far as revisionist is concerned, he was denied benefit of Section 4 of Act, 1958, probably on the ground that one country made pistol and two cartridges were recovered from his possession, ignoring the fact the he has no previous criminal history/criminal antecedents. Learned A.G.A. also could not place anything before this Court to show that revisionist had any criminal antecedents/criminal history or any other reason which may dis-entitle the revisionist to get benefit of Section 4 of Act, 1958.
While deciding a Criminal Appeal, a Division Bench of this Court (of which I was also a member), in the case of State of U.P. Vs. Girish Pal and Others, 2017 (100) ACC 353, vide order dated 13.07.2017, extended benefit of Section 4 of Act, 1958 to the accused persons, subject to certain conditions.
The Apex Court in State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Others, AIR 2004 SC 4412, has observed and held as under :
“26. In the result, these appeals are allowed, the judgment of acquittal passed by the High Court by order dated 7.8.2003 is set aside and conviction and sentence passed by the Magistrate as confirmed by the Additional Sessions Judge is maintained.
27. The learned counsel appearing for the accused submitted that the incident is of the year 1990. The parties are educated and neighbours. The learned counsel, therefore, prayed that benefit of Probation of Offenders Act, 1958 may be granted to the accused. The prayer made on behalf of the accused seems to be reasonable. The incident is more than 10 years old. The dispute was between the neighbours over a trivial issue of cleaning of drainage. The incident took place in a fit of anger. All the parties are educated and also distantly related. The incident is not such as to direct the accused to undergo sentence of imprisonment. In our opinion, it is a fit case in which the accused should be released on Probation by directing them to execute a bond of one year for good behaviour.”
In the present case, the incident took place on 27.02.1987, the court of first instance i.e. Chief Judicial Magistrate passed the order of conviction on 07.09.1991 and the lower appellate court affirmed the conviction vide order dated 30.03.1992. This criminal revision against the judgment and orders passed by the Courts below is filed in the year 1992 and bail was granted to the revisionist vide order dated 02.04.1992, while the revision in hand is being heard after lapse of about 26 years. From the date of incident till now, 28 years have been passed, therefore, I do not find any justification in sending the revisionist to jail after such long lapse of time. Specially when the revisionist is extended benefit of Section 4 of the Act, 1958, he has not criminal antecedents and there is no complaint about him for quite a long period of more than 28 years.
In view of the discussion made above, revisionist also appears to be entitled to get benefit of Section 4 of Act, 1958.
Keeping in view the arguments advanced at the Bar, as well as decision of Division Bench of this Court in State of U.P. Vs. Girish Pal and Others (supra) and the decision of Apex Court in Jagmohan Singh Kuldip Singh Anand and Others (supra), I find it desirable to release the accused-revisionist Komal Singh on probation in Criminal Case No. 124 of 1990, under Section 25 of Arms Act, Police Station – Babina, District – Jhansi, subject to furnishing of bonds containing following conditions therein :-
(1) The revisionist will be on probation for a period of one year from the date of his furnishing of bonds;
(2) The revisionist will not associate with bad characters or lead a dissolute life;
(3) The revisionist will live honestly and peacefully and will endeavour to earn an honest livelihood;
(4) The revisionist will not commit any offence punishable under any law in force in India;
(5) The revisionist will abstain from taking intoxicants;
(6) The revisionist will appear and receive sentence when called upon to do so;
(7) The revisionist will not commit a breach of peace or do any act that may occasion a breach of the peace;
(8) The revisionist will be of good behaviour to Government and all the citizens of India during the said period;
(9) The revisionist will carry out such directions as may from time to time be given by the Probation Officer, either verbally or in writing, for the due observance of the conditions mentioned above.
Any violation of above conditions will be treated misuse of probation and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of probation.
A copy of this order shall be provided to the Government Advocate for information and necessary compliance.
Revision is partly allowed.
Order Date :- 30.05.2018 A. Verma