1. This revision has been preferred against the Judgment and order passed by the IX Additional District and Sessions Judge, Aligarh dated 20.2.1990 setting aside the conviction and sentence under Section 324, 323, 325, 147, 148, 149 I.P.C. and convicting him under Section 323 I.P.C. and directing the accused to furnish two sureties and personal bonds for their good behaviour against the conviction and sentence passed by the III Judicial Magistrate, Aligarh in Criminal Case No. 701 of 1988.
2. The facts of the case in brief are that on 24.11.1985 at 3 p.m. the complainant Prem Pal Singh was ploughing his fields at village Haji ka Bans Majra within limit of police station Ilgasa. Suddenly the accused persons Mahavir armed with pharsa, Nekram armed with sale, Teka armed with ballam and remaining two accused Nabbo and Bani Singh armed with lathi came to the complainant and asked him to give them his patela. On refusal the accused started abusing and assaulting him upon which Har Pyari, Viri Singh , Ram Bharosi and Maharaj Singh came to save the complainant, who were also assaulted by the accused. On hearing hue and cry, Bhagga Singh, Pooran and many other persons came towards the place of occurrence and saved the complainant.
3. Charges were framed against the accused under Sections 147, 323, 148, 324, 325 I.P.C. The accused persons pleaded not guilty to the charge and claimed trial.
4. The prosecution examined P.W.-1 Pooran, P.W.-2 Prem Pal, P.W.-3 Viri Singh and P.W.-4 Maharaj Singh and five other persons, who proved the prosecution case. In the statement under Section 313 Cr.P.C. the accused denied the offence.
5. The learned Magistrate, after perusal of the evidence, convicted the accused, vide order dated 16.6.1989, against which Criminal Appeal No. 108 of 1989 was preferred in which conviction under Section 323 I.P.C. was upheld but the accused persons were granted probation.
6. It is well settled law that the evidence in revision as far as it relates to the factual aspects cannot be reassessed as can be don in appeal because it will be beyond the jurisdiction of the revisional court, who reassessed the evidence. The Hon'be Apex Court in AIR 1999 SC 981 State of Kerala vs. Putthumana Illath Jathavedan Namboodiri has held that the High Court while hearing the revisions does not work as Appellate Court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done.
7. I have gone through the impugned judgment and also material on record. It is well settled position of law that the High Court will exercise its revisional power where there is material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not disclose any offence.
8. As a broad proposition, the interference may be justified (a) where the decision is grossly erroneous; (b) where there is no compliance with the provisions of law; (c) where the finding of fact affecting the decision is not based on the evidence; (d) where the material evidence of the parties has not been considered; and (e) where the judicial discretion is exercised arbitrarily or perversely.
9. Thus, in exercise of revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence.
10. In another case reported in AIR 1993 Supreme Court 1126 State of Karnataka vs. Appa Balu Ingale and others it has been held by the Hon'ble Apex Court that " generally speaking, concurrent findings of fact arrived at by two courts below are not to be inferred with by the High Court in absence of any special circumstances or unless there is any perversity.
11. Considering the limited scope of revisional jurisdiction it is clear that the evidence recorded by the trial court and well discussed and appreciated by the Appellate Court is not required to be again re-appreciated on the point raised by the learned counsel for the revisionist.
12. I find that the evidence of the prosecution witnesses is clear and cogent and there is no illegality in appraisal of the evidence by the courts below. The residual question is applicability of Sections 3 and 4 of the Probation of Offenders Act and Section 360 of the Code. Where the provisions of the Probation of Offenders Act are applicable the employment of Section 360 of the Code is not to be made.
13. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the Legislature who gave birth to the Probation of Offenders Act and the Code wanted to obviate. Yet the Legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial provisions; be it Section 360 of the Code or the provisions of the Probation of Offenders Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative allegation of the provisions of the Probation Act are further noticed in Sub Section (10) of the 360 of the Code which makes it clear that nothing in the said Section shall affect the provisions of the Probation of Offenders Act. Those provisions have importance of their own in the respective areas where they are applicable.
14. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of 7 years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation of Offenders Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any rule for Probation Officers in assisting the courts in relation to supervision and other matters while Probation of Offenders Act does make such a provision. While Section 12 of the Probation of Offenders Act states that the persons found guilty of an offence and dealt with under Section 3 or 4 of the Probation of Offenders Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation of Offenders Act as applicable at the same time in a given area cannot be gathered from the provision of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force. The provisions of Section 360 of the Code are wholly inapplicable.
15. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Section 360, 361 of the Code in that area. Section 3 of the Probation of Offenders Act reads as follows:-
"3. Power of court to release certain offenders after admonition.- When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition.
Explanation.- For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4."
16. Section 4 of the Probation of Offenders Act reads as follows:-
"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 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.
(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 a 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 of 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.
17. In the circumstances, the revision deserves to be dismissed and the Judgment passed by the IX Additional Sessionsl Judge, Aligarh is liable to be confirmed.
18. Accordingly, the criminal revision is dismissed.
19. Sent the copy of this Judgment to the court concerned for compliance.
Order Date :- 1.8.2014 Ram Murti