CRR No. 778 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRR No. 778 of 2009 (O&M) Date of decision: 10.08.2010 Taksin Akhtar ........ Petitioner Versus State of Punjab and another .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. P K Khurana, Advocate for the petitioner Mr. K S Pannu, DAG, Punjab for the respondent State Mr. P S Dhaliwal, Advocate for respondent No. 2 -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. (Oral) CM No. 15584 of 2009 For the reasons mentioned in the application, delay of 64 days in filing the revision petition is condoned. The application is accordingly allowed. Main case This is a revision petition against the judgement dated 20.08.2008 passed by the Additional Sessions Judge, Ludhiana, releasing CRR No. 778 of 2009 2 respondent No.2-Dilshad Ali on probation. The Judicial Magistrate Ist Class, Ludhiana vide judgement dated 28.04.2004 convicted and sentenced respondent No.2 to under rigorous imprisonment for six months and to pay a fine of Rs.500/- for offence punishable under Section 406 of Indian Penal Code, in default thereof, to further undergo RI for seven days and also to undergo rigourous imprisonment for six months and to pay a fine of Rs.500/- for an offence punishable under Section 498-A IPC, in default of payment of fine, to further undergo rigorous imprisonment for seven days. Thereafter, respondent No. 2 preferred an appeal against the aforesaid judgement before the Additional Sessions Judge, Ludhiana, who while dismissing the same vide judgement dated 20.08.2008 modified the sentence to the extent that respondent-accused was ordered to be released on probation on his furnishing bond in the sum of Rs.10,000/- with one surety in the like amount for the period of one year and to keep peace and be of good behaviour during this period and to come and receive sentence as and when called upon to do so. The present revision petition has been filed by the petitioner/complainant being aggrieved with the judgement dated 20.08.2008 passed by the Additional Sessions Judge, Ludhiana vide which respondent-accused was ordered to be released on probation. While challenging the said judgement of the Appellate Court, learned counsel for the petitioner submitted that the consideration on which the Appellate Court based its judgement for releasing the convict- respondent No. 2 on probation, is devoid of merit as the mother of the CRR No. 778 of 2009 3 convict-respondent No. 2 is not blind and the fact that he is the only bread winner for his family is also wrong as his elder brother is a Tailor Master and is earning handsomely. It was further contended that as per Section 4 of the Probation of Offenders Act, 1958, the word “shall” in sub section (2) of Section 4 of the Act is mandatory in nature and the consideration of the report of the Probation Officer is a condition precedent for the release of the accused, whereas, in the present case, no such report was summoned. Learned counsel for respondent No. 2, on the other hand, submitted that respondent No. 2 was not released under Section 4 of the Probation of Offenders Act, 1958 and therefore, calling of report from the probation officer is not mandatory. Learned counsel for the parties were heard. Admittedly, respondent No. 2 was found guilty for an offence punishable under Sections 406 and 498-A of the Code of Criminal Procedure. Punishment as provided in the Code for the aforesaid offence is as under:- Section Offence Punishment 406 Criminal breach of trust Imprisonment for three years, or fine or both. 498-A Punishment for subjecting a married woman to cruelty Imprisonment for three years and fine It apparent from the above that the maximum punishment for the aforesaid offence is three years with fine. Section 360 (1) of the Code of Criminal Procedure reads as under:- “360. Order to release on probation of good conduct or after admonition. (1) When any person not under twenty-one years of age CRR No. 778 of 2009 4 is convicted of an offence punishable fine, or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not Punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it, appears to the court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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 find be of' good behaviour : [Provided that where first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect. and submit the proceedings to a Magistrate of the first class forwarding the accuses to or taking, bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2). xx xx xx xx xx xx xx xx xx” From the perusal of Section 360 (1) Cr.P.C., it is evident that in case a person is under 21 years and is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, it is expedient that the offender should be released on probation of good conduct. In fact, Section 361) Cr.P.C. further makes it mandatory to record CRR No. 778 of 2009 5 reasons in case the convict is not granted probation under the said Section. In the present case, not only is the maximum sentence that could have been awarded was just three years, sentence of only six months has been awarded to respondent No. 2. As such, respondent No. 2 is entitled to be released on probation under Section 360 Cr.P.C from every aspect. There is nothing either on record or in the grounds of revision to show that respondent No. 2 is not the first offender or that he was ever found guilty or convicted for any other offence. Another Single Bench of this Court ini the case of Banwari v. State of Haryana reported as 2004 (3) Cri.C.C. 401, held that when the accused was first offender, the Court should give benefit of Section 360 Cr.P.C. and went on to hold in para 8 as under:- “8. After hearing the rival contentions of both the sides, I find some force in the submissions made by the learned counsel for the petitioners. Their Lordships of the Apex Court in Om Parkash's case (supra) while dealing with the provisions of Sections 360/361 Cr.P.C. Have observed as under:- “The provisions of Section 360 Cr.P.C. are beneficial to the accused only when the accused is a first offender in case the accused is more than 21 years of age. Section 361 of the Code of Criminal Procedure indicates that if the Court decided not to exercise its jurisdiction under Section 360, then it must record its reasons as to why the benefit of Section 360 Cr.P.C. Is being denied. In view of the peremptory nature of the language of CRR No. 778 of 2009 6 provisions of Section 361, the Magistrate as well as the Court in appeal and revision having not indicated as to why the provisions of Section 360 Cr.P.C. have not been applied, there has been a gross miscarriage of justice and the legislative mandate engrafted in the aforesaid two sections of the Code have not been complied with.” There is no dispute with the well settled proposition of law as laid down by the Hon'ble Apex Court in the cases of M.C.D. V State of Delhi and another reported as AIR 2005 Supreme Court 2658 and Prithvi Raj and others v. Kamlesh Kumar and another reported as AIR 2004 Supreme Court 4401 that before making any order under Sub section (1) of Section 4 of the Act, the Court shall take into consideration the report, if any, of the Probation Officer concerned in relation to the case. Whereas, in the present case, Respondent No. 2 has been released under Section 360 Cr.P.C. and not under Section 4 of the Probation of Offenders Act, 1958. Section 4 of the Act would come into operation in case the accused is found guilty of an offence not punishable with death or imprisonment for life, wherein, the test applied would be more stringent including the requirement of the report of the probation officer. Section 360 Cr.P.C. does not provide for any role for probation Officer in assisting the Court, while the said provisions duly find mentioned ini Section 7 of the Probation of Offenders Act, 1958. Moreover, respondent No. 2 has been facing litigation since the year 1996. There is nothing on record to show that respondent No. 2 was CRR No. 778 of 2009 7 convicted for any other offence. There is no dispute with the fact that he isi the first offender. Admittedly, respondent No. 2 has already under gone the probation period. There is no allegation of misuse of this probation period or that he has committed any offence during the said period. Nothing has been pointed out to show that the convict has ever violated the terms and conditions of the order releasing him on probation. Moreover, respondent No. 2 was entitled to be released on probation in the facts of the present case in view of the mandate of Section 360 of the Code of Criminal Procedure. Dismissed. (Nirmaljit Kaur) Judge August 10, 2010 mohan