Cr Msc 421/05 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Cr. Msc. Petition No.421/2005 Ram KaranVersus State Date of Order ::: 15/01/08 Hon'ble Mr. Justice Ajay Rastogi Mr. Ganesh Meena, for petitioner (accused) Mr. Arun Sharma, Public Prosecutor Instant petition U/s 482 CrPC has been filed for quashing criminal proceedings initiated whereby standing arrest warrant has been issued against petitioner to undergo remaining part of sentence of three months' RI for his conviction U/s 379, IPC imposed vide judgment dt.11/03/83 passed by Addl. Judl. Mag. Sambhar Lake in Cr. Case No.147/77 duly upheld by Addl. Sess. Judge No.1 Jaipur District while rejecting his Cr. App. No.159/87 vide judgment dt.25/01/89. Facts in brief, are that on 20/06/77, complainant Panna lodged a report at PS Dudu alleging inter-alia that petitioner committed theft of a pair of oxen duly recovered from his possession immediately thereafter. Police filed challan and after trial, petitioner was convicted U/s 379, IPC vide judgment dt.11/03/83 and sentenced to three months' RI with a fine of Cr Msc 421/05 //2// Rs.200/- (in default, further one month's SI) – against which petitioner preferred appeal (Cr.App. 159/87) before Court of Sessions wherein his sentences were suspended vide order dt.11/03/83 but his appeal was finally dismissed vide judgment dt.25/01/89 – in pursuance whereof, petitioner was required to surrender with a view to undergo remaining sentence impugned duly upheld by appellate Court but he failed to do so; as such standing arrest warrants were issued. Hence this petition. Counsel submits that pendente appeal, petitioner was told that after suspension of sentences impugned he was free and under this bonafide belief, he could not re-appear and the fact remains that his appeal was later on dismissed on 25/01/89 – of which he had no intimation and this fact came to his notice only when warrants were issued to surrender for undergoing rest part of impugned sentence of three months' RI. Counsel submits that when he applied for certified copy of judgment of appellate court, there was office report on his application that complete record has been weed out; as such copy of appellate judgment could not be made available to him. Cr Msc 421/05 //3// Though Counsel has made submission against conviction & sentence impugned on merits but that apart, alternatively submits that if conviction is maintained, then also there is nothing on record about his bad character or antecedents at any point of time in course of trial for offence U/s 379, IPC, so as to dis- entitle him for benefit of probation, while looking to nature of offence and term of sentence impugned of three months RI awarded long back, Counsel submits that it is not in the interest of justice to send him in jail to serve out pity rest part of three months' RI. This Court has gone through the judgment impugned and finds no infirmity which may call for interference as regards conviction for offence U/s 379, IPC, for which petitioner has been held guilty. However, it was a case of petty theft and petitioner was 20 years of age at the time of occurrence and there is no previous conviction and antecedents of bad character and he has been sentenced to three months' RI, way back on 11/03/83 for incident of 20/06/77, in the interest of justice, instead of sending him back to the jail to serve out short span of rest part of impugned sentence of three months, in the opinion Cr Msc 421/05 //4// of this Court, petitioner is entitled for benefit of Probation and accordingly, he be released on probation after admonition U/s 3 of the Act, 1958. In the light of what has been ordered above, misc. petition along with stay petition is hereby allowed; to the above extent, impugned judgments of conviction & sentence dt.11/03/83 & 25/01/89 stands modified. A copy of this order be sent to the trial court for compliance. (Ajay Rastogi), J. K.Khatri/p.4/421CrMscP05prob.doc