1. The present criminal revision has been filed against the judgment and order dated 26.07.2004 passed by the Special Judge (Ayurved Scam Matter), Lucknow in Criminal Appeal No.11 of 1990 (Sarfuddin vs. State) upholding the conviction and sentence awarded by the Judicial Magistrate, Special Court (CBI), Lucknow in Case No.68 of 1989 arising out of Case Crime No.31 of 1985, CBI, Lucknow against the revisionist for rigorous imprisonment for four months and fine of Rs.2000/- under Section 420 Indian Penal Code. In default of payment of fine he would have to undergo further imprisonment for four months. The realization of fine of Rs.2000/- was to be disbursed equally amongst PW-1, PW-5, PW-6 and PW-7.
2. Learned counsel for the revisionist at the outset contended that the fine of Rs.2000/- has already been deposited before the Trial Court .
3. In support of the revision, learned counsel for the revisionist submitted that though there are sufficient reasons to challenge the judgment on merits but he is restricting the challenge to non-consideration of applicability of the provisions contained in Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as "the Probation Act") and Section 360 of Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code").
4. From perusal of the record, it reveals that the revisionist was enlarged on bail vide order dated 28.07.2004 passed by this Court. Thereafter vide order dated 18.08.2017, a report was sought from Chief Judicial Magistrate, Lucknow regarding the period undergone by the accused in this case. The report of Chief Judicial Magistrate, Lucknow dated 16.10.2017 and the report of Senior Superintendent District Jail, Lucknow dated 23.10.2017 are available on record. After perusal of the reports, it is found that the revisionist was confined since 26.07.2004 to 31.07.2004 in the District Jail in compliance of the impugned judgment.
5. Learned counsel for the revisionist submitted that presently the revisionist is aged about 57 years and he is having good conduct and there is no other criminal antecedent to his credit except the present one, therefore, his case may be decided in terms of Section 360 of the Code and Section 4 of the Probation Act. It is further submitted that the incident belongs to 34 years before.
6. Learned counsel for the revisionist in support of the contention also relied upon the authorities of Hon'ble Supreme Court in State of Karnataka vs. Muddappa, (1999) 5 SCC 732, State through Central Bureau of Investigation, Anti Corruption Branch, Chandigarh Vs. Sanjiv Bhalla and another, (2015) 13 SCC 444, Om Prakash and others vs. State of Haryana, (2001) 10 SCC 447 and Daljit Singh and others vs. State of Punjab, through Secretary Home Affairs, (2006) 6 SCC 159.
7. Sri Bireshwar Nath, learned counsel for the respondent submitted that on the basis of gravity of the offence, the case of the revisionist may not be considered under the provisions contained in the Probation Act or Section 360 Cr.P.C. of the Code.
8. I have considered the arguments advanced by learned counsel for the parties.
9. In the Case of Gulzar vs. State of M.P (2007) 1 SCC 619 the applicability of Sections 3 and 4 of the Probation Act and Section 360 of the Code was considered and reappreciated. The relevant part of the aforesaid judgment is reproduced hereunder:-
"10. The residual question is applicability of Sections 3 and 4 of the P.O. Act and Section 360 of the Code.
11. Where the provisions of the P.O. Act are applicable the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, who gave birth to the P.O. 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 P.O. Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative elevation of the provisions of the P.O. Act are further noticed in sub-section (10) of Section 360 of the Code which makes it clear that nothing in the said Section shall affect the provisions of the P.O. Act. Those provisions have a paramountcy of their own in the respective areas where they are applicable.
12. 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 seven 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 P.O. 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 role for Probation Officers in assisting the Courts in relation to supervision and other matters while P.O. Act does make such a provision. While Section 12 of the P.O. Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the P.O. 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 P.O. Act as applicable at the same time in a given area cannot be gathered from the provisions 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.
13. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 360, 361 of the Code in that area.
14. Section 3 of the P.O. Act refers particularly to Section 379 IPC. Same 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 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."
10. In the case of Chandreshwar Sharma vs. State of Bihar (2000) 9 SCC 245 dealt the identical matter. The relevant portion of the case of Chandreshwar Sharma (supra) is reproduced hereunder:-
"3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of the CrPC. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the CrPC. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly.
(emphasized by me)"
11. I have gone through the entire record and the law laid down by the Hon'ble Supreme Court as discussed above. As the revisionist, who is aged about 57 years having no criminal antecedents to his credit except the present one, this Court came to the conclusion that the benefits of Section 4 of the Probation Act read with Section 360 Cr.P.C. should be given to the revisionist.
12. Accordingly the revision is partly allowed. Conviction of accused-revisionist Sarfuddin under Section 420 Indian Penal Code is hereby upheld, but his sentence is set aside. Instead of sentencing him at once to any punishment, he is released on probation of good conduct for a period of one year. Revisionist is directed to furnish a personal bond and two reliable sureties each in the like amount, to the satisfaction of trial court, before the trial court within 30 days from receipt of certified copy of this order. In case of violation of condition of probation he would be liable to undergo imprisonment imposed by the Court.
13. Office is directed to send a certified copy of this order to Judicial Magistrate, Special Court (CBI), Lucknow. Let the lower court's record remitted back to the court concerned.
Order Date :-30.01.2019 cks/-