1 Criminal Appeal No.237/1999 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.237 OF 1999 Prakash s/o Madhavrao Patil @ Raju Sikandar Padvi Age 29 years, Occ. R/o Wadhan, Dist. Aurangabad ... APPELLANT VERSUS The State of Maharashtra, through its Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad ... RESPONDENT ..... Shri G.V. Wani, Advocate for the appellant Shri D.V. Tele, A.P.P. for State ..... CORAM : S.S. SHINDE, J. DATED : 2nd & 3rd August, 2011. PER COURT : 2nd August 2011. 1. This order is being passed in continuation of the judgment delivered by this Court on 7th March 2011. 2 Criminal Appeal No.237/1999 2. The above mentioned appeal was heard by this Court extensively and after hearing the appellant and also the respondent/State, the appeal came to be dismissed on 7.3.2011, thereby confirming the judgment and order passed by the 4th Additional Sessions Judge, Jalgaon in Sessions Case No. 131/1992. 3. While arguing the appeal, the counsel for the appellant made alternate submission that if the Court is not inclined to allow the appeal, in that case, the prayer of the appellant to give him benefit of the provisions of Section 360 of the Criminal Procedure Code may be considered. The appellant herein did file affidavit on record in appeal, stating therein that, during pendency of Sessions Case No.131/1992 he was enlarged on bail and during the pendency of Criminal Appeal No.237/1999, he was enlarged on bail. It was further stated in the said affidavit that the alleged incident had taken place in the year 1990 at Jalgaon. The age of the appellant is 42 years and he is earning his livelihood by doing sundry labour work. He got married 18 years back and have 4 daughters and 2 sons to be looked after apart from his wife and his old aged mother. It is further stated in the said affidavit that except the offence for which he was tried by the Sessions Court, there had been no any offence registered against him even before the said incident and till date. The alleged incident is first incident in his life 3 Criminal Appeal No.237/1999 and he is trying to support his family by doing labour work. There is no any other criminal case pending against him and he has no criminal antecedents and, therefore, lenient view may be taken and he may be given opportunity to improve his life and lead his life in a peaceful manner. 4. Upon perusal of the affidavit filed by the appellant, during pendency of the appeal, and after confirming the judgment and order of the Sessions Court in Sessions Case No.131/1992 this Court considered the prayer of the accused/ appellant for giving him benefit under Section 360 of the Criminal Procedure Code and accordingly, the District Probation Officer was directed to make enquiry and thereafter submit report to this Court. This Court further observed in its judgment and order dated 7.3.2011 that, depending upon the report of the District Probation Officer, this Court will consider the prayer of the appellant/ accused for giving him benefit under Section 360 of the Criminal Procedure Code. It was further observed that, till such report is received by this Court and this Court passes further order on the said report, the judgment and order assailed in appeal and confirmed by this Court, should not be acted upon till then. The district Probation Officer, Jalgaon has sent his report on 30.4.2011. 4 Criminal Appeal No.237/1999 5. The said report was placed before me for further consideration. However, at the relevant time, the assignment to hear the criminal appeals was not with me. Therefore, the office was directed to place the matter before the Bench which is assigned the work of hearing the criminal appeals. Accordingly, matter was placed before the regular Bench which was assigned the work of hearing of the criminal appeal, however, the learned Judge who was assigned the work of hearing the appeal, felt that, the appeal is already disposed of and, therefore, it should be placed before the Judge who has decided the appeal and accordingly, the registry, after taking necessary instructions from the learned Chief Justice assigned the matter to this Bench. 6. The District Probation Officer, Jalgaon, in his report, has given details about the name and address of the appellant namely Prakash Madhavrao Patil @ Raju Sikandar Tadvi. It is stated in the said report that, he is resident of Atalgavhan, Taluka Pachora, District Jalgaon. The said village is his native place and he is residing on the said place since long. So far his habits and behaviour is concerned, it is stated that, the behaviour of the appellant and his habits and his character is good. It is also stated in the said report that, the appellant is found to be hard working and peaceful by nature. It is further stated in the said report that, 5 Criminal Appeal No.237/1999 he is cultivating his own land to the extent of 50 Ares and while cultivating his land, he is also doing the labour work in the field of other villagers for his survival. He is not literate. Initially he was working at Jalgaon in one hotel, however, after he was released on bail, he is residing at his native place Atalgavhan. Now he is cultivating his agricultural land and in addition to that, he is also doing labour work in village. His annual income is Rs.50,000/- to 60,000/-. There is also mention about the manner in which offence is committed by the appellant. It is also mentioned in the report that, the persons in his circle are of good character. On visiting his family, the officer found that he is staying with his wife and 6 children. His family life is satisfactory and peaceful. His father is not alive, mother is staying with his sister. There are also details given about the children that children are studying in school. There is also mention about the financial conditions of the appellant in the said report. The Probation Officer on enquiry with the police patil and other villagers, found that, the other villagers and police patil have sympathetic view towards the petitioner and they have also stated before the Probation Officer that, family of the appellant is peaceful. On interaction with the wife of the appellant, the Probation Officer found that the wife was worried about the fact that the appellant will have to again undergo the remaining sentence. The neighbourers of the appellant also expressed satisfaction 6 Criminal Appeal No.237/1999 about the behavour and conduct of the appellant. It is also observed in the report that the family members of the appellant are under tremendous pressure if the appellant has to undergo the sentence as awarded by the Sessions Court and confirmed by this Court. It is specifically mentioned in the said report that, the unstable life and poor financial condition is the reason for committing the offence by the appellant. It is further stated in the said report that, the appellant is not convicted in any other offence. It is also stated in the said report that the appellant, 4 to 5 months prior to date of incident in the year 1990, in a hit of anger, ran away from his house and came into contact with some friends who were having bat habits and because of such company, he committed the offence. The other two accompaniments of the appellant ran away from the spot of the incident, however, the appellant was caught at the spot. It is further mentioned in the said report that the appellant has expressed grave concern about undergoing the conviction and also he has expressed repentance and further prayed that he may be excused. It is specifically stated in conclusions that, the appellant/accused is residing in village. He does not appear to be criminal minded. He indulged into commission of offence since he was involved in the company of fiends, who were having bad habits and criminal attitude. It is also stated in conclusion in the report that, the appellant/ accused has expressed regret about offence 7 Criminal Appeal No.237/1999 committed by him. In the family of appellant, there are 4 daughters, 2 sons and wife. The entire family is dependent upon the appellant/ accused and it is recommended that, the appellant may be given benefit under the provisions of Probation of Offenders Act. It is further observed in the said report that, the appellant can be released on executing bond of good behaviour. 7. The provisions of Section 360 of the Criminal Procedure Code read thus : “360. (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, ot 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 behavour. 8 Criminal Appeal No.237/1999 3rd August 2011. 8. While interpreting the provisions of Section 360 of the Criminal Procedure Code, this Court, in case of Rajesh Anantram Thakur Vs. The State of Maharashtra, reported in [ 1992 (3) Bom. C.R. 696 ], observed that the section is a piece of beneficent legislation. The object of the section is to avoid sending the first offender to prison and thereby running the risk of turning him into a regular criminal. 9. The Division Bench of this Court had also occasion to interprete Section 360 of the Criminal Procedure Code in case of Ramdas Maroti Thakur & anr. Vs. State of Maharashtra & anr., reported in [ 2005 (1) Bom. C.R. (Cri.) 629 ]. In para 7 of the said judgment, it is held :- “7. The provision of section 360 Criminal Procedure Code are very clear. It is stipulated that where a person of more than 21 years of age is convicted of an offence which is punishable with imprisonment for a term of seven years or less, may be instead of sentencing him at once, ordered to be released on probation of good conduct by his executing a bond to that effect for a period not exceeding three years. These provisions are indicated to give statutory shape to the principle of reformative theory of punishment. When antecedents of a person convicted are clear he is not guilty of any criminal offence prior to the one for which he has been convicted, his conduct otherwise is good, then he must be given a chance on his 9 Criminal Appeal No.237/1999 furnishing bond for good conduct to prove that what happened was an error and further to prove that he will reform himself as contemplated by the doctrine of reformative punishment. The learned Counsel appearing on behalf of the appellant submits that during the period of 11 years when this accused was on bail during the pendency of this appeal there is no report of any mis-use of bail granted to him by this Court, nor is there any complaint of any other offence committed by him. In view of the above circumstances, therefore, we are of the view, taking into consideration the age, character and antecedents of the accused No.2 that it is a fit case for application of provisions of section 360 Criminal Procedure Code. We note that benefit of this section was given by the learned trial Judge himself to accused No.1. In such circumstances refusing such a relief to the accused No.2 when the appeal against acquittal filed by the State has failed on merits, would be discriminating between the two identically situated persons. In our considered opinion, therefore, this accused/ appellant Ramdas Maroti Thakur is liable to be extended the provisions of section 360 Criminal Procedure Code.” 10. In case of Mohamed Aziz Mohamed Nasir Vs. State of Maharashtra, reported in [ (1976) 1 SCC 657 ], the Hon’ble Supreme Court has laid down certain guidelines and in facts of that case, by invoking provisions of Section 360 of the Criminal Procedure Code, the Hon’ble Supreme Court suspended the sentence on certain conditions. Yet, in another case, in case of Nasiruddin Khan & ors. Vs. State of Bihar, reported in [ AIR 2008 SC 3198 ], the Hon’ble Supreme Court, noting provisions of Section 360 of the Criminal Procedure Code, has extended the benefit available to the appellant/ accused therein. Yet, in another case, in 10 Criminal Appeal No.237/1999 case of Ved Prakash Vs. State of Haryana, reported in [ (1981) 1 SCC 447 ], the Hon’ble Supreme Court invoked the provisions of Section 360 of the Criminal Procedure Code and granted benefit to the appellant/ accused therein. Therefore, from the authoritative pronouncement of the Apex Court as well as this Court, if the offence committed by the appellant/ offender is first offence in his life, if he has no criminal antecedents, if he is not habitual criminal and if he has shown repentance to improve in his life, in that case, benefit of provisions of Section 360 of the Criminal Procedure Code can be extended to the accused. In the instant case, the Probation Office has given detailed report which is summarised hereinabove. In the light of said report, I am inclined to agree with the opinion expressed by the Probation Officer that the benefit of provisions of Section 360 of the Criminal Procedure Code is required to be given in the present case. I am satisfied that the offender has fixed place of abode and regular occupation. The report fully supports the direction for release of the appellant/ accused, instead of sentencing him. 11. Therefore, in the light of discussion hereinabove and in the light of report of the Probation Officer, this Court is inclined to give benefit of the provisions of Section 360 of the Criminal Procedure Code to the appellant/ accused. Therefore, while 11 Criminal Appeal No.237/1999 upholding the conviction of the appellant, instead of directing the appellant to undergo sentence, I direct that the appellant shall be released on executing a bond with one surety to the extent of Rs. 10,000/- for a period of three years, within which period he shall continue to be on probation for good behaviour and keeping piece. The appellant shall prove to be of good conduct and maintain peace during the period of probation. The appellant Prakash s/o Madhavrao Patil @ Raju Sikandar Padvi shall execute bond of good behaviour before District & Sessions at Jalgaon. The District Probation Officer shall submit report after every six months about the conduct and behaviour of the appellant/accused to the District & Sessions Judge, Jalgaon. It is made clear that, as stated earlier, the appellant/accused to remain on probation for three years and he is not required to undergo remaining part of the sentence. Appeal accordingly stands dismissed. ( S.S. SHINDE, J. ) fmp/cri237.99