Crl. Revision No. 1279 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 1279 of 2003 Date of decision: April 27, 2011 Vipan Kumar ...Petitioner Versus State of Punjab ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. S.N. Chopra, Advocate and Mr. Rakesh Chopra, Advocate, for the petitioner. Mr. PS Paul, DAG, Punjab. GURDEV SINGH, J. (Oral) This revision has been preferred by Vipin Kumar- petitioner/accused, against his conviction and sentence for the offence under Section 11 of the Punjab Regulation of Colonies Act, 1975 (hereinafter referred to as 'the Act'), recorded by SDJM, Amloh, which was upheld in the appeal by the Additional Sessions Judge, Fatehgarh Sahib. The facts, in brief, are that the accused was the owner of compact land/plot in the revenue limits of village Kukarmajra, which was recorded in the jamabandi. He divided that land into 8 plots and sold the same to Renu Garg, Gaurav Jindal, Pawan Kumar Bansal, Sanjiv Kumar, Sukhdev Singh, Baldev Singh, Darshna Sharma, Seema Sharma and Ram Krishan Goyal, vide eight sale deeds, which were executed during the period of 19.4.1994 to 27.4.1994. He did not obtain any licence under the Crl. Revision No. 1279 of 2003 2 Act before dividing that compact land into eight plots and selling the same to different persons. On 8.9.1994, Norang Singh, JE (PW-10) visited the spot and on demarcation came to know about setting up of the colony. He wrote a letter to the Administrator, Urban Estates, Patiala, about this act of the accused, who violated the provisions of the Act. The Administrator made his endorsement on that letter and sent the same to the police, which resulted in recording of the FIR against the accused. In the course of investigation, relevant documents were taken into possession and statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure Code (hereinafter referred to as 'the Code'). The Investigating Officer visited the spot and after inspecting the same, prepared rough site plan with correct marginal notes. The prosecution of the accused was sanctioned by the Director, Housing and Urban Development Punjab. After completion of the investigation, challan was put in before the SDJM, Amloh, who found sufficient grounds for presuming that the accused committed offence punishable under Section 11 of the Act. He was charged accordingly, to which he pleaded not guilty and claimed trial. The prosecution examined 21 witnesses for proving the guilt of the accused. After the close of the prosecution evidence, the accused was examined by the trial court and his statement was recorded under Section 313 of the Code. The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his false implication. He was called upon to enter on his defence but he did not produce any evidence in his defence. After going through the evidence, so produced and hearing Crl. Revision No. 1279 of 2003 3 Assistant Public Prosecutor for the State and the learned defence counsel for the accused, the SDJM convicted the accused of the aforesaid offence and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 1000/- and in default thereof, to undergo further rigorous imprisonment for a period of 15 days. As already said above, in the appeal preferred against that judgment, the conviction and sentence was maintained by the appellate court. I have heard learned counsel for both the sides. Learned counsel for the petitioner/accused did not assail the conviction of the accused so recorded by the trial court and upheld by the appellate court. He confined his arguments to the order of sentence. He submitted that the accused has stood protracted trial for 18 years. It was only a plot of 300 square yards, which is said to have been divided into 8 plots and in the year 1995 just after one year of launching of the prosecution, a new Act known as the Punjab Apartment of Property and Regulation Act, 1995 was enacted repealing the above said Act and the minimum area of compact plot has been extended to 1000 square yards. It was never the prosectuion case that the accused intentionally violated the provisions of the Act. He is not a previous convict and keeping in view the circumstances of the present case, he is entitled to the benefit of probation. The offence under Section 11 of the Act is punishable with imprisonment for a period of less than seven years and, as such, as per the provisions of Section 360 of the Code, the accused was entitled to the benefit of probation, as it was not the case of the prosecution that he was a previous convict. As per Section 361 of the Code, the trial court and the appellate court were required to record special reasons for not giving the Crl. Revision No. 1279 of 2003 4 benefit of Section 360 of the Code. No such reasons were recorded by the trial court. However, the reasons recorded by the appellate court are re- produced below:- “As far as the prayer for release of the accused on probation is concerned, I find that the accused has not bothered about his social obligations and has converted his land into a colony simply for his personal gains. Such like colonization leads to haphazard development of the urban area which certainly is not in the interest of the society. As such, I do not find any special reason to grant probation and the sentence imposed upon by the learned trial court is perfectly justified...” The reasons given by the appellate court cannot be said to be sufficient reasons for denying probation to the accused. Now reformatory theory prevails over the punitive theory. An opportunity must be given to the accused, keeping in view the fact that he was not a previous convict. Moreover, he is facing the agony of the trial from the last 15 years. I am of the considered opinion that the nature of the offence and the circumstances of the case are such that it will be expedient in the interest of justice to release the accused on probation. Accordingly, this revision is partly allowed. The sentence so imposed upon the accused is set aside and he is ordered to be released on probation, on his executing personal bond in the sum of `10,000/- with one surety in the like amount for a period of two years to appear and receive the sentence as and when called upon to do so during that period and to keep peace and be of good behaviour in the meanwhile. The fine so imposed upon him shall be treated as costs of the proceedings. The bonds are to be Crl. Revision No. 1279 of 2003 5 furnished before the trial court within three months. Records of the trial court be returned forthwith. April 27, 2011 (GURDEV SINGH ) prem JUDGE Note:- Whether to be referred to reporter No