Crl. Revision No. 648 of 2005 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 648 of 2005 (O&M) Date of Decision: March 07, 2011 Parkash Singh and another ---Petitioners versus State of Punjab ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.M.S.Bedi, Senior Advocate, with Mr. Anil K. Joshi, Advocate, for the petitioners Ms. Gagan Mohini, Assistant Advocate General, Punjab *** GURDEV SINGH, J. The State of Punjab, through Junior Engineer, filed complaint under Section 11(1) read with Sections 3(1) and 8(1) of the Punjab Regularization of Colonies Act, 1975 (hereinafter referred to as “the Act”) against the petitioners/accused, Parkash Singh and Barjinder Singh, as attorneys of Gurjit Singh and Ranbir Singh, who were also arrayed as accused No. 1 and 2. It has been averred in the complaint that Gurjit Singh and Ranbir Singh were the owners of the land bearing Khasra No. 592/1/2 situated in Crl. Revision No. 648 of 2005 -2- village Phagwara Sharki Had Bast No. 73 as per jamabandi for the year 1988- 89. They divided that land into five or more plots and transferred those for residential, commercial and industrial purposes to Joginder Singh and others. The details thereof is as under:- Sr.No . Name of Purchaser Area of plots No. and date of Registration Sale price 1 Joginder Singh s/o Munsha Singh 11-1/2 marlas 536 18.5.1992 ` 29,000/- 2 Jaspal Kaur w/o Joginder Singh 11-1/2 marlas 535,18.5.1992 ` 29,000/- 3 Madan Lal s/o Natha Ram Batra 11-1/2 Marlas 534,18.5.1992 ` 29,000/- 4 Gurmit Singh s/o Karam Singh 11-1/2 Marlas 624,26.5.1992 ` 29,000/- 5 Santokh Singh s/o Charan Singh 13-3/4 Marlas 509,15.5.1992 ` 34,000/- Thus, the accused set up a colony as defined in Section 2(c) of the Act. They did so without obtaining any licence, as required by Section 4(2) of the Act and thus, committed the aforesaid offence. As the complaint was filed by a public servant in the discharge of his official duties, so the accused were summoned to stand their trial without recording any preliminary evidence. The petitioners-accused Parkash Singh and Barjinder Singh, appeared before the trial court, whereas the other accused did not appear in spite of the issuance of summons and warrants against them and ultimately proclamation was published against them under Section 82 Cr.P.C. They did not appear in the trial court in spite of the publication of the proclamation and as such were declared as Proclaimed Offenders. In the pre-charge evidence, the complainant examined Kamal Kishore, Registration Clerk, PW-1,Gurmit Singh, PW-2,Madan Lal, PW-3, Ajaib Ram, Senior Clerk, PW-4, Santokh Singh and Sukhdarshan Singh,PW-5 and Daljeet Singh, PW-6.From that evidence sufficient grounds were found for Crl. Revision No. 648 of 2005 -3- presuming that the accused committed offence punishable under Section 11(1) of the Act and they were charged accordingly, to which they pleaded not guilty and claimed trial. The accused availed of the opportunity to further cross examine all the witnesses examined by the complainant in pre-charge evidence. After the evidence was closed by the complainant, they were examined and their statements were recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their false implication. It was stated by Barjinder Singh-accused that he executed three sale deeds but the land was never sold in the shape of plots and the sale was for the purposes of agriculture and not for any other purpose. According to Parkash Singh- accused, he executed two sale deeds but the sale was not in the shape of plots but was only for agricultural purposes. They were called upon to enter on their defence but they did not produce any evidence in their defence. After going through the evidence produced on the record and hearing learned counsel for both the sides, JMIC convicted the accused under Section 11(1) of the Act, vide judgment dated 17.2.2004 and sentenced them to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 3000/- each and in default thereof to further undergo rigorous imprisonment for a period of three months. Against that conviction and sentence, the petitioners-accused preferred an appeal, which was dismissed by Sessions Judge, Kapurthala. The present revision has been preferred by the accused against that conviction and sentence. I have heard learned counsel for both the sides. Counsel for the petitioners-accused did not assail the findings of conviction recorded by the trial court and upheld by the appellate court. He Crl. Revision No. 648 of 2005 -4- has submitted that both the petitioners-accused are old persons of more than 70 years and are the first convicts. They acted only as general attorneys of the original owners. They have already undergone sentence of imprisonment for a period of one year. Keeping in view the nature of the offence and the part attributed to them, they are entitled to be released on probation. This prayer of the counsel for the petitioners-accused has been opposed by the State counsel by submitting that it was a well designed offence committed by the accused and as such, they are not entitled to the benefit of probation. The prosecution neither alleged nor proved any previous conviction against any of the petitioners-accused. The offence, for which they have been convicted, is punishable with imprisonment for less than seven years. Therefore, both the courts below were required to record special reasons for not giving the benefit of probation under Section 360 Cr.P.C., as provided by Section 361 Cr.P.C. That benefit was disallowed by the trial court by observing in the order that in view of the facts and circumstances of the case, the deterrent punishment is called for. The first appellate court did not record any reason what to say of special reasons for not extending the benefit of probation to the petitioners-accused. The petitioners-accused only acted as the attorneys of the original owners and it were the original owners who must have been benefitted by the carving of the colony. It is not the case of the prosecution that they are previous convicts. It has also not been disputed that, at present, they are more than 70 years old. The offence, so committed by them is not to effect the society at large and is not such that they should be denied the benefit of probation. Keeping in view the nature of the offence and the part attributed to the present petitioners-accused, I think it proper and expedient to release them Crl. Revision No. 648 of 2005 -5- on probation in stead of sentencing them at once to any punishment. Accordingly, the sentence so imposed upon them is set aside and they are ordered to be released on probation on their executing personal bond in the sum of ` 10,000/- each with one surety in the like amount in each case for two years for appearing and receiving the sentence as and when called upon to do so during this period and to keep peace and be of good behaviour in the meantime. Fine, so imposed upon them, shall be treated as cost of the prosecution. The bonds are to submitted by them before the trial court within two months of the passing of this order. The revision petition is disposed of accordingly. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE March 07, 2011 PARAMJIT