CR.RA/260/1998 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 260 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? 1 & 2 YES; 3 to 5 NO ========================================================= RAJIV MANGILAL JAIN - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR BS PATEL for Applicant(s) : 1, MR SS PATEL ADDL PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 23/11/2006 ORAL JUDGMENT 1. The applicant-convict has approached this court under section 397 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) after being convicted by the trial court and sentenced CR.RA/260/1998 2/5 JUDGMENT to suffer rigorous imprisonment for one year with fine of rupees one thousand and after the conviction and sentence being confirmed by the learned Additional Sessions Judge by judgment dated 20.6.1997. 2. Learned counsel Mr.Chirag Patel, appearing for the applicant, restricted his argument to avail the benefit of probation under the provisions of section 360 of the Cr.P.C. He submitted that, even after conviction of the applicant for serious offence punishable under section 406 of the Indian Penal Code, 1860 (for short “the IPC”), the applicant was entitled to be considered under the provisions of section 360 of the Cr.P.C. in view of the facts that the amount alleged to have been misappropriated by the applicant was refunded to the original complainant, that he was only aged 25 at the time of the offence, that it was his first offence and he had clean antecedents and that no other allegation was made against his character or regarding his activities. It was, on that basis, submitted by the learned counsel that the trial court as well as the appellate court had failed to consider those relevant factors and, after about 17 years of the offence, the applicant was facing imprisonment for his first offence, even as he was acquitted of the charges for the CR.RA/260/1998 3/5 JUDGMENT offences punishable under sections 409 and 420 of the IPC. 3. Learned A.P.P. submitted that the trial court had formed a firm opinion that the offence committed by the applicant was required to be severely dealt with and, in absence of any evidence regarding the nature of his physical disability, the applicant was rightly not given the benefit of being released on probation. 4. It clearly appears from the judgments of the trial court and the appellate court that both the courts had failed to record the special reasons for not granting the benefit of the provisions for releasing the convict on probation despite presence of the relevant factors of young age of the convict, absence of any bad antecedents of the offender and failed to consider the circumstances in which the offence was committed. Therefore, in short, it appears that the subordinate courts have failed to exercise the discretion and jurisdiction vested in them, requiring appropriate order by this court under sub-section (4) of section 360 of the Cr.P.C. 5. The facts of the applicant having fully refunded the amount to the complainant, his being CR.RA/260/1998 4/5 JUDGMENT of young age of 25 and his record of no previous conviction are not in dispute. Having regard to the milieu in which a young partly handicapped person like the applicant accepts employment in the form of an agency and deals with cash, the act of even temporary misappropriation cannot be condoned but can certainly be considered in the larger perspective and, having regard to the principle and ideology underlying the provisions of section 360 of the Cr.P.C., the applicant could have been and ought to have been granted the benefit of being released on probation on executing a bond of good conduct rather than being consigned to an over-crowded jail. 6. Therefore, in the peculiar facts and circumstances of the case, the application is partly allowed and the impugned order of conviction is suspended to the extent that the sentence of rigorous imprisonment for one year is ordered to remain in abeyance on condition that the applicant shall execute a bond in the sum of Rs.10,000/- (rupees ten thousand only) with one surety of the like amount and shall appear and receive sentence in the event of his committing the same or similar offence during the course of the probation period. The applicant shall, in the meantime, keep peace, be of good behaviour and not commit any other offence under the I.P.C. The CR.RA/260/1998 5/5 JUDGMENT applicant shall execute and submit such bond, within a period of one month, before the trial court and then shall stand released on probation of good conduct, subject to the conditions of the bond. 7. Rule is made absolute in the above terms with no order as to costs. Direct service is permitted. Sd/- ( D.H.Waghela, J.) (KMG Thilake)