Crl. Rev. No.2296 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Rev. No.2296 of 2008 Date of Decision: 02.05.2011 Rang Rao ....Petitioner Versus Pawan Kumar and others ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. N.S. Shekhawat, Advocate for the petitioner. Mr. Sanjay Mittal, Advocate for respondents No.1 to 4. Mr. Sidharth Sarup, D.A.G., Haryana for the respondent-State. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a revision against the judgment and order dated 20.09.2008, vide which, the Additional Sessions Judge, Narnaul has modified the sentence awarded to respondents No.1 to 4 by releasing them on probation. The facts, in short, are that the Chief Judicial Magistrate, Narnaul convicted respondents No.1 to 4 and sentenced them to undergo simple imprisonment for 1½ years for commission of offence under Section 325 of IPC and were also further sentenced to pay a fine of Rs.300/- each and in case of default of payment of fine, each convict shall further undergo simple imprisonment for two months. Crl. Rev. No.2296 of 2008 2 Aggrieved, the respondents accused filed an appeal against the order dated 24.04.2007 passed by the Chief Judicial Magistrate, Narnaul. Learned counsel for respondents No.1 to 4 did not argue the case on merits in appeal but pleaded that a lenient view be taken and the accused be released on probation. Accordingly, the Additional Sessions Judge, Narnaul vide his order dated 20.09.2008 dismissed the appeal but released the accused/respondents on probation on their entering into bonds of good conduct in the sum of ` 25,000/- with one surety in the like amount each to the satisfaction of this court for a period of two years and to appear and receive sentence as and when called upon to do so and in the meantime, to keep peace and be of good behaviour. Aggrieved, the present revision has been filed by the petitioner-complainant. While challenging the impugned judgment dated 20.09.2008 passed by the Additional Sessions Judge, Narnaul, learned counsel for the petitioner submitted that the Additional Sessions Judge failed to see that the respondents No.1 to 4 had caused serious injuries to Rang Rao-petitioner/injured and that most of the injuries were caused on vital organs with lethal weapons. Secondly, even the small child Pinki received injuries on the upper and lower lip. Heard. The respondents were admittedly convicted only under Section 325 of the IPC for the injuries inflicted on Rang Rao, whereas, there is no evidence to show that the injuries, if at all, on the child i.e. Pinki were received at the hands of the respondents. As such, the said argument cannot be sustained. The question, herein, is as to whether the respondents could have been released on probation in the facts of the present case or not. Crl. Rev. No.2296 of 2008 3 Section 360(1) of the Cr.P.C 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 is convicted of an offence punishable with fine only 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 and be of good behaviour:” Hon'ble the Supreme Court in the case of Om Parkash and others vs. State of Haryana reported as 2003(1) RCR (Crl.) 216, held as follows :- “ 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 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 Crl. Rev. No.2296 of 2008 4 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.” In other words, while refusing to exercise the provisions of Section 361 Cr.P.C and releasing the respondents on probation, reasons have to be specified. Thus, the accused who is more than 21 years of age and is convicted in an offence punishable with fine or imprisonment with a term of seven years has a right to be considered for probation. In the present case, admittedly, the respondents are facing trial since the year 1997. It is admitted that they are first offenders. The main accused Braham Dutt had already died during trial and proceedings against him were already dropped. The respondents were convicted for an offence under Section 325 IPC for a period of 1½ years. As such, a right to be considered for probation. While releasing the respondents on probation, the Additional Sessions Judge, Narnaul, vide his order dated 20.09.2008 held in para 12 as under :- “12. As regard sentence, the appellants (herein the respondents) have stated that they are not previous convicts. Appellant Pawan Kumar made statement that he is a poor person having one child and there is none else to earn livelihood for his family. Partap Singh made statement that he has two small children and is the sole bread earner of his family. Bharpai-appellant made statement that she is 65 years old and Bimla-appellant made statement that she has two minor children and there is none in the family to look after them. They prayed for a lenient view in the matter of sentence.” In view of the above, there is no reason as to why the respondents should not have been released on probation. There is no material to show that they have indulged in any crime during the period of trial. None of them is previous convict. There is nothing to show that their Crl. Rev. No.2296 of 2008 5 conduct is improper. Moreover, they were ordered to be released on probation vide order dated 20.09.2008. Thus, the respondents have already undergone the period of probation. As such, in any case, the present petition is rendered infructuous. Accordingly, the same is dismissed both on merits, as well as, on account of it having been rendered infructuous. However, taking into account the injuries received by the petitioner, the respondents No.1 to 4 are directed to pay a total amount of compensation to the tune of ` 30,000/- jointly or severally to the petitioner. (NIRMALJIT KAUR) 02.05.2011 JUDGE gurpreet