You are on page 1of 69

CHAPTER 8

JUDICIAL PRONOUNCEMENT
8.1 Introduction
The restriction on use of probation based on age, sex and previous
conviction as laid down in Section 360 of the Code of Criminal
Procedure, 1973 does not exist in the Probation of Offenders Act, 1958
and it is applicable to all alike without such discrimination.
The Courts are empowered to place any offender on probation who
is guilty of committing any offence not being an offence punishable with
death or imprisonment for life.
The Act envisages a regular machinery for equity into the
personality, character, antecedents and home surroundings of the
offender in order to help the Court in dealing with the offender suitably
under the Act.
It makes probation inquiries mandatory in case of offenders below
the age of 21 years where provisions of the Act are applicable.
Probation implies suspension of sentence so that in case of failure
the term of sentence would automatically revive without the need for a
fresh trial.
Release on probation envisages various typs of conditions
including residential requirements, abstention from intoxicants and
payment of compensation by the probationer etc.
The Probation Officer's Pre-sentence Report is to be treated as
confidential as provided in Section 7 of the Act.
An appeal against the order refusing to release the offender on
probation may be taken up by the appellant Court suo motu.
Release on probation casts no stigma on the probationer and
attaches no disqualification whatsoever.
Besides the Probation of Offenders Act, 1958, provisions relating to
release on probation are also contained in the Code of Criminal

(288)
Procedure, 1973 (Section 360); The Juvenile Justice (Care and Protection
of Children) Act, 2000 [Section 15(e) and (f) and The Reformatory Schools
Act, 1897 (Section 31), NDPS Act, 1985 (Section 33) etc.].

8.2 Various Dimensions


Condition of probation order - The Court may attach such terms and
conditions to probation orders as it may deem fit under the
circumstances of a particular case. The Court should be allowed a wide
but not unlimited discretion in imposing conditions. As regards the
conditions of probation order the following passage from the book called
The Magistrate by Sir Alison Russell will pay perusal:
The conditions imposed on a probationer are usually some of the
following:
1. That he be of good behaviour and appear before the Court for
(conviction and) sentence when called on at any time during the
period of ........... now next ensuring;
2. That he does not associate with ..............;
3. That he does not frequent ..............;
4. That he does lead an honest and industrious life;
5. That he does abstain from intoxicating liquor;
6. That he does reside at ..............;
7. That during the said period he be under the provision of ..............
(hereinafter called the Probation Officer), and
(a) For the purpose of securing such supervision, that the
probationer receive at his own home visits from the
Probation Officer weekly, or at such other intervals as the
Probation Officer may think fit; and, if so required by the
Probation Officer, attend at the probationer's home for the
purpose of such visits at times fixed by the Probation Officer;

(289)
and answer truly all questions put to him by the Probation
Officer with regard to his conduct, employment or residence;
(b) And that the probationer report forthwith to the Probation
Officer any charge of his residence or place of employment;
8. (Any special condition);
9. (As to damage or costs);
Special conditions
Apart from general conditions as to future conduct and the
requirements as to visits and reports to the Probation Officer, other
conditions should be simple and directed to the special circumstances of
the case; the inquiries made by the Probation Officer will enable him to
assist the Magistrate with advice as to the need of any special conditions
relating to the association or habits of the offender.
Duration of probation –
Probation orders are generally made for a period of not less than one year
and not more than three years.

8.3 Current Decided case Law


There are some decided case where M.P. High Court interpretate some
provisions of Probation of offenders Act, 1958 Details are under the
following :-

Rajkumar Pandey Vs. State of Madhya Pradesh, 2012(II) MPWN 212 :


2012(3) M.P.H.T. 337
[Ref.] Sec. 360 [under Essential Commodities Act, 1955- Sec. 3, 7(1)
(A)(2)] - Sacchidanand Vs. State of Madhya Pradesh thro' Food Inspector,
Ratlam, 2012 Cr. L.R. (M.P.) 618.
[Ref.] Sec. 360 - Probation of Offenders Act, 1958 - Sec. 6/4 - Penal
Code, 1860 - Secs. 294 and 324 - Offence under - Sentence -
Accused applicant is 18 years of age at the time of incident - No

(290)
material available about previous conviction of appellant in any
other case - He has not prosecuted after this case in any other case
and he is living peaceful life and maintaining his family - Now, he is
a married man - Held, It would be just and proper to release
applicant on probation. - Mahendra S/o Chunnilal Vs. State of Madhya
Pradesh thro' P.S. Banganga, 2006 Cr. L.R. (M.P.) 660.
[Ref.] Sec. 360, 361 [under Penal Code, 1860-Sec. 325]-Kalu Mandod
Vs. State of Madhya Pradesh, Jhabua, 2011 Cr. L.R. (M.P.) 689.
[Ref.] Sec. 360, 361 [under Penal Code, 1860-Secs. 354, 448]- Balbeer
Singh Vs. State of Madhya Pradesh, 2012 Cr. L.R. (M.P.) 145 : 2012 (I)
MPWN 254 : 2012 (2) M.P.H.T. 50
[Ref.] Sec. 360, 361 - Benefit of probation- Offence u/ss. 325 and
323- Prayer for granting probation- Benefit of probation refused only
on the ground of serious offence- Dispute regarding field - Civil suit
is also pending- No special reason given by the Sessions Court - First
facts of the case benefit of probation given. - Ishwarlal & Ors. Vs.
State of Madhya Pradesh, 2011 Cr. L.R. (M.P.) 667
[Ref.] Sec. 360, 361 - Conviction u/ss. 452 and 323 I.P.C. - Benefit
of probation not given - Prayer for granting probation - Petitioners
are labourers and first offenders - No reasons assigned for not
granting benefit of probation - Held, It is a fit case and benefit of
probation granted. - Annu & Anr. Vs. State of Madhya Pradesh, 2011
Cr. L.R. (M.P.) 661
[Ref.] Sec. 360, 361 - Offence u/s. 143 of Railways Act - Benefit of
probation not extended- First offence - No previous conviction -
Imprisonment of 3 months only - Held, Benefit of probation given. -
Manmohan Vs. State of Madhya Pradesh, 2011 Cr. L.R. (M.P.) 666
[Ref.] Sec. 360, 361 - Offence u/ss. 279, 337, 338 and 304 - A–Prayer
for granting benefit of probation–Incident is of the year 1991–
Mechanical Inspector not examined–Held, Considering the facts of

(291)
the case benefit of probation is allowed. – Habib Patel Vs. State of
Madhya Pradesh, 2011 Cr. L.R. (M.P.) 697
[Ref.] Sec. 360, 361–Revision–Prayer for granting benefit of
probation–Offence u/s. 324/34 I.P.C.–17 years of old case– Courts
below not given any reasons for not granting probation–No previous
conviction–First offence– Held, It is a fit case for granting benefit of
probation.– Manak Lal & Ors. Vs. State of Madhya Pradesh, 2011 Cr.
L.R. (M.P.) 655
[Ref.] Sec. 362, 360, 482– Conviction u/s. 498-A–Petition to grant
benefit of probation since the petitioner's service is likely to be
affected adversely-Family dispute between the parties–Held, It is
made clear that the conviction of the petitioner shall not affect his
service career.– Dinesh Swami Vs. State of Madhya Pradesh Thro' P.S.
Badnawar, Distt. Dhar, 2011 Cr. L.R. (M.P) 614
[Ref.] Sec. 372 Proviso–Order passed in appeal challenged–
Maintainability – No specific provision of 2nd appeal in criminal
case–Order of conviction or acquittal passed in appeal is not
appealale–Held, Appeal is not maintainable and appellant is directed
to take steps for converting the appeal into revision.– Srikrishan Vs.
Deenbandhu & Ors. 2013 Cr. L.R. (M.P.) 107.

8.4 Overview of Supreme Court’s Case


Researcher has used some cases of Supreme Court (reportable by
Supreme Court) to taken overview of Supreme Court. Under mentioned
cases Supreme Court has been given full illustration & guidelines to the
grant of probation. Supreme Court observed that in what manners trial
court should grant probation and when it should not be considered by
appropriate authority.
By all means, in recent cases Supreme Court has brought proper
attention in Sec.4, sec.12 of probation of offenders act, 1958 and

(292)
Sec.360, Sec.361 of Criminal Procedure Code, 1973. Thus, there are
some important leading cases which have decided by the Supreme Court.
Researcher is giving full details of that particular case under the
following with brief facts of all cases to the overview of the Supreme
Court.
The view of Supreme Court is shown very clearly towards those
offenders who come under probation of offenders act, 1958 with study of
these cases widely. On the study of these cases we find that some time
Supreme Court vision was very strong and Supreme Court had rejected
such S.L.P but some time the Special Leave Petitions have been admitted
by the Supreme Court.
Infect the submission of appeal is depended on the particular facts
of that case, respectability of offenders, nature of offence, and previous
conviction of accused.
DETAILS OF SOME CURRENT DECIDED CASES OF SUPREME
COURT
(a) Reference
In The Supreme Court Of India Criminal Appellate Jurisdiction Criminal
Appeal No.171 Of 2013 (@ Special Leave Petition (Crl.) No. 4378 Of
2012)
Shyam Lal Verma
...Appellant
Versus
Central Bureau Of Investigation
....Respondent
Brief Facts: The appellant is a retired employee of Post Office. The
incident occurred in 1993-94. The allegation against him is that he
misappropriated to the extent of Rs.1,35,240/- (Rupees one lakh thirty
five thousand and two hundred forty). The employees of various
departments deposited their amount, but the appellant did not remit the
amount and failed to make entry in the ledger. He was charged under
(293)
Section 477-A IPC read with Section 3(1)(c) and 13(2) of the Prevention of
Corruption Act 1988.
The only point for consideration in this appeal is, whether the
Probation of Offenders Act is applicable to offences under the Prevention
of Corruption Act? The Trial Court applied Probation of Offenders Act
and sentenced him accordingly. This was reversed by the High Court and
ultimately imposed substantive sentence of one year.
It is not in dispute that the issue raised in this appeal has been
considered by this Court in 2004 (4) SCC 590
– State Through SP, New Delhi Versus Ratan lal Arora wherein in
similar circumstances, this Court held that since Section 7 as well as
Section 13 of the Prevention of Corruption Act provide for a minimum
sentence of six months and one year respectively in addition to the
maximum sentences as well as imposition of fine, in such circumstances
claim for granting relief under the Probation of Offenders Act is not
permissible. In other words, in cases where a specific provision
prescribed a minimum sentence, the provisions of the Probation Act
cannot be invoked. Similar view has been expressed in 2006 (11) SCC
473 – State Represented by Inspector of Police, Pudukottai, T.N. Vs. A.
Parthiban.
In view of the settled legal position, we find no valid ground to interfere
with the impugned order of the High Court.
Decision: Consequently, the appeal is dismissed. In view of the dismissal
of the appeal, the appellant shall surrender and has to undergo
remaining period of sentence. His bail bonds executed pursuant to our
order dated 05.07.2012 shall stand cancelled.
Comments: Supreme Court observed, there is no merit in petition and
court dismissed this appeal to grant probation benefit to the accused.

(294)
(b) Reference
In The Supreme Court Of India Criminal Appellate Jurisdiction Criminal
Appeal No. 1547 Of 2013
Girraj Prasad Meena
...Appellant
Versus
State of Rajasthan & Ors.
...Respondents

Brief Facts: This appeal has been preferred against the impugned
judgment and order dated 23.4.2012 passed by the High Court of
Judicature of Rajasthan (Jaipur Bench) in S.B. Criminal Misc. Petition
No. 1260 of 2012, by which the High Court rejected the application filed
by the appellant under Section 482 of Code of Criminal Procedure, 1973
(hereinafter referred to as `Cr.P.C.’) for setting aside the judgment and
order dated 15.7.2011 passed by the Judge, Gram Nyayalaya, Gangapur
City, District Sawai Madhopur, Rajasthan, in Case No. 269 of 2011,
whereby the trial court has allowed the application of the respondents-
accused for pleading guilty for the offences punishable under Sections
323 and 343 of the Indian Penal Code, 1860 (hereinafter referred to as
the `IPC’) and has further given them the benefit of Section 12 of the
Probation of the Offenders Act, 1958, (hereinafter referred to as the `Act
1958’), in the case arising out of FIR No. 115 of 2009 lodged at Police
Station Wazirpur under Section 365 IPC.
Facts and circumstances giving rise to this appeal are that: The
learned Magistrate passed an order under Section 156 (3) Cr.P.C. for the
investigation whereunder FIR No. 115 of 2009 under Section 365 IPC
was lodged on the complaint filed by one Kamlesh Meena, who is
brother-in-law of the appellant, alleging that the appellant had been
kidnapped by the private respondents alongwith other accused when he
was returning from the school duty as a teacher.
(295)
Police investigated the matter, located the appellant from village
Jeevli on 4.7.2009 and recorded the statements of various persons under
Section 161 Cr.P.C, and the statement of the appellant was recorded
under Section 164 Cr.P.C. After completing the investigation, the police
filed a charge sheet dated 4.8.2010 against the accused – namely private
respondents only for offences punishable under Sections 323, 343 read
with Section 34 IPC.
After filing of the charge sheet, the trial commenced. On 3.1.2011,
the court ordered the presence of the witnesses for recording their
statements on 9.6.2011. However on the said date, the summons were
issued to three witnesses, including the appellant for recording their
evidence on 7.7.2011. But on the date so fixed, the trial could not
proceed.
On 15.7.2011, both the accused-respondents appeared before the
learned trial court and filed an application pleading guilty for the
offences under Sections 323 and 343 IPC. The said application was
entertained forthwith and the learned trial court concluded the trial on
that day itself, without issuing notice to the appellant, convicting the
respondents under Sections 323 and 343 IPC and imposing a fine of
Rs.500/-, and further granting them the benefit of provisions of Sections
3 & 12 of the Act 1958. The learned Magistrate further held that the
order passed in criminal case herein shall not have any adverse affect on
the government service of the accused persons.
There are statutes which provide that persons who are convicted
for certain offences shall incur certain disqualifications. For example,
Chapter III of the Representation of the People Act, 1951, entitled
‘Disqualifications for membership of Parliament and State Legislatures’
and Chapter IV entitled ‘Disqualifications for Voting’ contain provisions
which disqualify persons convicted of certain charges from being
members of legislatures or from voting at elections to legislatures. That is
the sense in which the word ‘disqualification’ is used in Section 12 of the
(296)
Probation of Offenders Act. [Therefore, it is not possible to accept the
reasoning of the High Court that Section 12 of the 1958 Act takes away
the effect of conviction for the purpose of service also.”
The provision of the Act 1958 has been dealt with by this Court
elaborately in Sushil Kumar Singhal v. Regional Manager, Punjab
National Bank, (2010) 8 SCC 573, wherein after considering the
judgments of this court in Aitha Chander Rao v. State of A.P., 1981 Supp
SCC 17; Harichand v. Director of School Education, AIR 1998 SC 788;
Divisional Personnel Officer, Southern Railway & Anr. v. T.R.
Chellappan, AIR 1975 SC 2216; and Trikha Ram v. V.K. Seth & Anr., AIR
1988 SC 285, the court held as under: “In view of the above, the law on
the issue can be summarised to the effect that the conviction of an
employee in an offence permits the disciplinary authority to initiate
disciplinary proceedings against the employee or to take appropriate
steps for his dismissal/removal only on the basis of his conviction. The
word “disqualification” contained in Section 12 of the 1958 Act refers to a
disqualification provided in other statutes, as explained by this Court in
the above referred cases, and the employee cannot claim a right to
continue in service merely on the ground that he had been given the
benefit of probation under the 1958 Act.”(See also: Karamjit Singh v.
State of Punjab, (2009) 7 SCC 178).
Thus, we are also of the considered opinion that the trial court had
no competence to make any observation having civil consequences so far
as the private respondents are concerned. The High Court rejected the
application under Section 482 Cr.P.C. filed by the appellant only on the
ground that the appellant neither challenged the order of taking
cognizance nor raised any objection at the time of reading over of the
charges to the accused. The High Court failed to appreciate that before
the statement of the appellant or any other witness could be recorded,
the trial court disposed off the matter on the date when the application
itself had been submitted admitting the guilt. Even otherwise if the trial
(297)
court wanted to entertain any issue of plea bargaining under Chapter
XXI- A, inserted w.e.f. 5.7.2006, then too the court was obliged
thereunder to put the victim to notice before extending any such benefits
that have been given in the present case.
Decision: The procedure therefore appears to have been clearly violated.
Therefore, in the facts and circumstances of the case, the appellant had
no opportunity to raise any grievance before the appropriate forum. In
view of the above, the appeal succeeds and is allowed.
(c) Reference
In The Supreme Court Of India Criminal Appellate Jurisdiction Criminal
Appeal No. 1547 Of 2013
Girraj Prasad Meena
...Appellant
Versus
State of Rajasthan & Ors.
...Respondents
Brief Facts: This appeal has been preferred against the impugned
judgment and order dated 23.4.2012 passed by the High Court of
Judicature of Rajasthan (Jaipur Bench) in S.B. Criminal Misc. Petition
No. 1260 of 2012, by which the High Court rejected the application filed
by the appellant under Section 482 of Code of Criminal Procedure, 1973
(hereinafter referred to as `Cr.P.C.’) for setting aside the judgment and
order dated 15.7.2011 passed by the Judge, Gram Nyayalaya, Gangapur
City, District Sawai Madhopur, Rajasthan, in Case No. 269 of 2011,
whereby the trial court has allowed the application of the respondents-
accused for pleading guilty for the offences punishable under Sections
323 and 343 of the Indian Penal Code, 1860 (hereinafter referred to as
the `IPC’) and has further given them the benefit of Section 12 of the
Probation of the Offenders Act, 1958, (hereinafter referred to as the `Act
1958’), in the case arising out of FIR No. 115 of 2009 lodged at Police
Station Wazirpur under Section 365 IPC.
(298)
Facts and circumstances giving rise to this appeal are that: A. The
learned Magistrate passed an order under Section 156 (3) Cr.P.C. for the
investigation whereunder FIR No. 115 of 2009 under Section 365 IPC
was lodged on the complaint filed by one Kamlesh Meena, who is
brother-in-law of the appellant, alleging that the appellant had been
kidnapped by the private respondents alongwith other accused when he
was returning from the school duty as a teacher.
B. Police investigated the matter, located the appellant from village Jeevli
on 4.7.2009 and recorded the statements of various persons under
Section 161 Cr.P.C, and the statement of the appellant was recorded
under Section 164 Cr.P.C. After completing the investigation, the police
filed a charge sheet dated 4.8.2010 against the accused – namely private
respondents only for offences punishable under Sections 323, 343 read
with Section 34 IPC.
C. After filing of the charge sheet, the trial commenced. On 3.1.2011, the
court ordered the presence of the witnesses for recording their
statements on 9.6.2011. However on the said date, the summons were
issued to three witnesses, including the appellant for recording their
evidence on 7.7.2011. But on the date so fixed, the trial could not
proceed.
D. On 15.7.2011, both the accused-respondents appeared before the
learned trial court and filed an application pleading guilty for the
offences under Sections 323 and 343 IPC. The said application was
entertained forthwith and the learned trial court concluded the trial on
that day itself, without issuing notice to the appellant, convicting the
respondents under Sections 323 and 343 IPC and imposing a fine of
Rs.500/-, and further granting them the benefit of provisions of Sections
3 & 12 of the Act 1958. The learned Magistrate further held that the
order passed in criminal case herein shall not have any adverse affect on
the government service of the accused persons.

(299)
E. Filing of charge sheet and taking cognizance has nothing to do with
the finality of charges, as charges framed after the cognizance is taken by
the court, can be altered/amended/changed and any charge can be
added at any stage upto the stage of conviction in view of the provisions
of Section 216 Cr.P.C. The only legal requirement is that, in case the trial
court exercises its power under Sections 228/251 Cr.P.C., the accused is
entitled to an opportunity of show- cause/hearing as required under the
provisions of Section 217 Cr. P.C. (Vide: Umesh Kumar v. State of A.P.,
JT 2013 (12) SC 213).
7. In fact, the appellant has been raising the grievance from the very
beginning that the police has not been investigating the case properly
and for that purpose, he had also approached the High Court by filing
Writ Petition No. 14272 of 2009, wherein several directions had been
issued by the Division Bench of the High Court of Rajasthan to the
Director General of Police for a fair investigation vide orders dated
10.2.2010 and 11.8.2010. In the statement of the appellant recorded
under Section 164 Cr.P.C. before the learned magistrate, appellant has
given a full version as to how he had been kidnapped while returning
from school duty and forcibly lifted by the private respondents and five
others in a Innova Car and was illegally detained from 29.6.2009 till
4.7.2009 when he was located by the police. Appellant named 7 persons
and serious allegations of criminal intimidation, threats, terrorising and
causing physical harm had been levelled. The police after concluding the
investigation filed a charge sheet only against the two accused and, that
too, only for the offences punishable under Sections 323 and 343 IPC.
8. Had the trial court applied its mind to the material collected during
investigation and particularly the statement recorded under Section 164
Cr.P.C., the charges could have been framed also under Section 365 IPC.
In that case, the Gram Nyayalaya would have no jurisdiction to deal with
the matter as the maximum sentence for that offence is 7 years
imprisonment with fine, and the Magistrate in that situation, was bound
(300)
to commit the matter to the Sessions court. Further, before the
statements of the witnesses could be recorded, the private respondents
filed an application admitting their guilt. Had the statements of the
witnesses been recorded, perhaps the court could have issued summons
to other accused under Section 319 Cr.P.C. or charges could have been
amended/altered/modified under Section 216 Cr.P.C. More so, at that
stage, the appellant was not heard as no notice had been issued to him.
The trial court proceeded in great haste and disposed off the matter on
15.7.2011 the same date when the application was filed by the private
respondents.
9. On the said facts, we are of the considered opinion that the learned
trial court proceeded not only in great haste, but adopted a procedure
not known in law, and the judgment and order of the trial court therefore
stands vitiated.
10. In State of U.P. v. Ranjit Singh, AIR 1999 SC 1201, this Court has
held that the High Court, while deciding a criminal case and giving the
benefit of the U.P. First Offenders’ Probation Act, 1938, or similar
enactment, has no competence to issue any direction that the accused
shall not suffer any civil consequences. The Court has held as under:
Decision: In view of the above, the appeal succeeds and is allowed. The
judgment and order of the trial court dated 15.7.2011 as well as of the
High Court dated 23.4.2012 are set aside. The matter is remitted to the
trial court to be decided afresh in accordance with law. As the matter is
very old, we request the trial court to conclude the trial afresh adopting
the procedure as explained hereinabove expeditiously, preferably within
a period of six months from the date of filing certified copy of the order
before it. Before parting with the case, Supreme Court clarified that we
have expressed no opinion on the merits of the ensuing trial.

(301)
(d) Reference
In The Supreme Court Of India Criminal Appellate Jurisdiction Criminal
Appeal No. 1985 Of 2010 With CRL.A.No.1990/2010,
CRL.A.No.1991/2010, Crl.A.No.1992/2010 And CRL.A.No.342/2011
Nanak Ram
Appellant(s)
versus
State of Rajasthan
.. Respondent(s)
Brief facts: This judgment shall dispose of three appeals in Criminal
appeal Nos.1985 of 2010 filed by the appellant Nanak Ram/Accused and
Criminal Appeal No.342 of 2011 filed by appellants/Accused Mohan Ram
and Surja Ram against their conviction and sentence, and Criminal
Appeal Nos. 1991 of 2010, 1990 of 2010 and Criminal Appeal No.1992 of
2010 filed by the State of Rajasthan for the enhancement of the sentence
against the above mentioned accused, respectively.
2. The case of the prosecution in brief is as follows : PW 7 Shera Ram is
the younger brother of deceased Shivji Ram and they had obtained land
from Gram Panchayat towards the western side of the village and
obtained Pattas for the said land. Accused Bhera Ram and accused
Chuna Ram are real brothers while accused Surja Ram and accused
Mohan Ram are sons of accused Sadula Ram. Accused Bhera Ram and
Sadula Ram told Shivji Ram and Shera Ram that they will not allow
them to take the land and will snatch it from them. Two months prior to
occurrence Shivji
Ram and Shera Ram erected fencing around their land whereupon
the accused Bhera Ram and other accused were seriously annoyed over
the same. On the occurrence day i.e. on 29.5.1983 at 10.30 a.m. Shivji
Ram and both his younger brothers were repairing/re-erecting the
fencing in their land, accused persons Bhera Ram, Sadula Ram and his
sons Mohan Ram and Surja Ram, Gordhan Ram, Nanak Ram and Chuna
(302)
Ram, all duly armed entered into Bara from south side and started
dismantling the fence. Shivji Ram and his brothers questioned the same
by saying that they have obtained Patta from the Panchayat. Thereupon
Bhera Ram and Surja Ram simultaneously inflicted Barchhi blow on the
head of Shivji Ram, as a result of which he fell down and all the accused
attacked him with their weapons. Shera Ram intervened and accused
Mohan Ram inflicted Barchhi blow which landed on the left side of his
head and accused Chuna Ram inflicted the jei blow on his right leg. Then
all the accused started beating whereupon his sister Dhuri came running
and fell upon Shera Ram in order to protect him. PW 11 Balu Ram and
PW 2 Mangi Lal who were present at the occurrence place were
threatened by the accused and they got frieghtened and saw the
occurrence standing by the side of the road. After that all the accused
went away. Shivji Ram died on the spot.
We are of the considered view that imposition of 7 years rigorous
imprisonment on each of the appellants for the conviction under Section
304 Part I IPC would meet the ends of justice. We sustain the other
conviction and sentences imposed on the appellants. We are also of the
view that the appellants are not entitled for release on probation.
Decision: In the result Criminal Appeal No.1990 of 2010, 1991 of 2010
and 1992 of 2010 preferred by the State of Rajasthan against the
accused persons Nanak Ram, Mohan Ram and Surja Ram are partly
allowed and their conviction for the offence under Section 304 Part II IPC
read with Section 149 IPC and the sentences of 5 years rigorous
imprisonment each are set aside and instead they are convicted for the
offence under Section 304 Part I read with Section 149 IPC and
sentenced to undergo seven years rigorous imprisonment each. All other
convictions and sentences imposed on them by the High Court are
maintained. Criminal Appeal No.1985 of 2010 and 342 of 2011 are
dismissed.

(303)
(e) Reference:
In The Supreme Court Of India
Criminal Appellate Jurisdiction
Criminal Appeal Nos. 47-48 Of 2012
(Arising out of S.L.P. (Crl.) No. 7872-7873 of 2010)
State of Punjab .... Appellant(s)
Versus
Balwinder Singh and Ors. .... Respondent(s)
Facts: (On 30.10.1992, one Dhian Singh-the Complainant(PW-3), after
attending the last rites of one of his relatives at Village Mustabad,
Amritsar was returning to Batala along with his family members in a
Jhang Transport Bus bearing No. PB-02-D-9485. The bus was being
driven at a very high speed by the driver-Respondent No. 1 herein. When
the aforesaid bus reached the bus stand at Mudhal, at that time, a truck
bearing No. PB-02-C-9665 which was being driven by Respondent No. 2
herein was coming from the opposite side at a very high speed. Both the
drivers were driving their vehicle at a very high speed and in rash and
negligent manner, as a result of which, both the vehicles collided with
each other and two passengers, namely, Darshan Singh s/o Bela Singh
and Banso w/o Ajit Singh died at the spot. The other passengers,
namely, Sonia, Dalbir Singh and Ramandeep were taken to the Civil
Hospital but later on they succumbed to their injuries. On the basis of
the complaint of Dhian Singh, FIR No. 125/92 was registered under
Sections 304A, 279 and 337 of IPC and after formal investigation the
case was forwarded to the Court of Judicial Magistrate, Ist Class,
Amritsar. The Judicial Magistrate, by order dated 14.12.1998, convicted
both the accused persons and directed them to undergo rigorous
imprisonment for 2 years each for the offence under Section 304A and to
pay fine of Rs. 200/- each, in default, to further undergo rigorous
imprisonment for two months and to also undergo rigorous
imprisonment for a period of six months each for the offence punishable
(304)
under Sections 337 and 279 IPC. Aggrieved by the judgment and order
dated 14.12.1998, the accused persons preferred an appeal before the
Additional Sessions Judge, Amritsar. Vide judgment dated 20.05.2000,
the Additional Sessions Judge upheld the judgment and orderpassed by
the Judicial Magistrate, Ist Class, Amritsar. Questioning the same, the
respondents herein filed Criminal Revision Petition being Nos. 653 and
655 of 2000 qua nature of offence and quantum of sentence before the
High Court. The High Court, by order dated 04.11.2009, while confining
to the question of quantum of sentence only, reduced the sentence of the
accused persons to the period already undergone (15 days) and in
addition thereto, enhanced the fine to an amount of Rs. 25,000/- each.
Against the order of the High Court, the State of Punjab has filed these
appeals before this Court by way of special leave petitions. Heard Mr.
Ashok Aggarwal, learned senior counsel for the appellant and Mr. Sudhir
Walia and Mr. K.G. Bhagat, learned counsel for the respondents.Before
the High Court, the respondents, who preferred the revisions, did not
dispute the finding relating to negligence rendered by the courts below
and confined their submissions to the quantum of sentence only and
prayed that the sentence be reduced to the period already undergone. In
support of the above claim, they pointed out that they had suffered a
protracted trial for about 17 years and had already undergone custody
for 15 days, therefore, prayed for lenient view by modifying the sentence.
On the other hand, on behalf of the State, it was submitted that
inasmuch as the negligence was proved beyond reasonable doubt,
therefore, no leniency should be shown to the accused. The High Court,
without taking note of the seriousness of the matter, namely, due to the
negligence of the two drivers, five persons traveling in the bus died,
merely because of protracted trial of about 17 years and both of them
had served sentence for a period of 15 days, reduced the same to the
period already undergone and enhanced the fine to an amount of
Rs.25,000/- each. It is not in dispute that the trial Court on appreciation
(305)
of evidence and accepting the prosecution witnesses convicted the
respondents for an offence under Section 304A. The said section reads as
under: 304A. Causing death by negligence.- Whoever causes the death of
any person by doing any rash or negligent act not amounting to culpable
homicide, shall be punished with imprisonment of either description for
a term which may extend to two years, or with fine, or with both.”
Section 304A was inserted in the Penal Code by the Indian Penal Code
(Amendment) Act 27 of 1870 to cover those cases wherein a person cause
the death of another by such acts as are rash or negligent but there is no
intention to cause death and no knowledge that the act will cause death.
The case should not be covered by Sections 299 and 300 only then it will
come under this section. While considering the quantum of sentence to
beimposed for the offence of causing death or injury by rash
andnegligent driving of automobiles, one of the prime considerations
should be deterrence. The persons drivingmotor vehicles cannot and
should not take a chance thinking that even if he is convicted he would
be dealt with leniently by the Court. For lessening the high rate of motor
accidents due to careless and callous driving of vehicles, the courts are
expected to consider all relevant facts and circumstances bearing on the
question of sentence and proceed to impose a sentence commensurate
with the gravity of the offence if the prosecution is able to establish the
guilt beyond reasonable doubt. In the light of the above principles, we
express our inability to accept the reasoning of the High Court in
reducing the sentence of imprisonment to the period already undergone,
that is, 15 days. Merely because the fine amount has been enhanced to
Rs.25,000/- each, is also not a sufficient ground to drastically reduce the
sentence, particularly, in a case where five persons died due to the
negligent act of both the drivers of the bus and the truck.
Judgment : Accordingly, Supreme Court set aside the impugned order of
the High Court and impose a sentence of rigorous imprisonment for six
months with a fine of Rs. 5,000/- each. The trial Court is directed to take
(306)
appropriate steps for surrender of the accused in both the appeals to
serve the remaining period of sentence. The appeals are allowed to the
extent mentioned above.
Comment: In this case, Supreme Court allowed the appeal to grant
probation benefit to the accused.
(f) Reference
In The Supreme Court Of India
Civil Appellate Jurisdiction
Civil Appeal No. 6423 Of 2010
(Arising out of SLP (C) NO. 4216 OF 2008)
Sushil Kumar Singhal …Appellant
Versus
The Regional Manager,
Punjab National Bank …Respondent
Brief Facts: This appeal has been preferred against the Judgmentand
Order dated 10.09.2007 passed by High Court of Punjab & Haryana in
Civil Writ Petition 14014 of 2007, by which the High Court had
dismissed the writ petition for quashing the award dated 3rd January,
2007, passed by the Central Government Industrial Tribunal-cum-
Labour Court-II at Chandigarh (hereinafter called as, “Tribunal”), by
which the Tribunal had upheld the dismissal of the appellant from
service on the ground of conviction of the appellant in criminal case
involving moral turpitude.Facts and circumstances giving rise to the
present case are that the appellant was appointed as a Peon in the
respondent-Bank, Kaithal Branch, on 01.12.1971 and stood confirmed
on the said post vide order dated 28.12.1977. The appellant was handed
over cash of Rs.5000/-, to deposit the same as dues for the Telephone
Bill in the Post Office. However, it was not deposited by the appellant,
therefore, the bank lodged FIR No. 171 under Section 409 of Indian Penal
Code, 1860 (hereinafter called “lPC”) against the appellant, on
27.04.1982, in Police Station, City Kaithal. Appellant was tried for the
(307)
said offence. After conclusion of trial, the appellant was convicted by the
competent Criminal Court vide Judgment and Order dated 28.01.1988.
The respondent-Bank issued a Show Cause Notice dated 01.03.1988 to
the appellant, proposing dismissal from service and asked the appellant
to show cause within a period of seven days. The appellant submitted the
reply dated 08.03.1988. However, the respondent-Bank dismissed the
appellant from service vide order dated 09.03.1988. Being aggrieved, the
appellant raised an industrial dispute under the Industrial Disputes Act,
1947 and the matter was referred to the Tribunal. In the meanwhile, the
appeal filed by the appellant against the order of conviction was decided
by the appellate Court vide judgment and order dated 29.5.1989. The
appellate Court maintained the conviction, but granted him the benefit of
probation under The Probation of Offenders Act, 1958 (hereinafter called
as, Act 1958) and released the appellant on probation. The Tribunal
made the award dated 03.01.2007, rejecting the claim of the appellant
and holding his dismissal from service to be justified and in accordance
with law.
Judgment: The conviction in a criminal case is one part of the case and
release on probation is another. Therefore, grant of benefit of the
provisions of Act, 1958, only enables the delinquent not to undergo the
sentence on showing his good conduct during the period of probation. In
case, after being released, the delinquent commits another offence,
benefit of Act, 1958 gets terminated and the delinquent can be made
liable to undergo the sentence. Therefore, in case of an employee who
stands convicted for an offence involving moral turpitude, it is his
misconduct that leads to his dismissal. Undoubtedly, the appellant was
convicted by the Criminal Court for having committed the offence under
Section 409 IPC and was awarded two years’ sentence. The appellate
court granted him the benefit of Act, 1958. The Tribunal rejected his
claim for re-instatement and other benefits taking note of the fact that
appellant was given an opportunity by the Management to show cause as
(308)
to why he should not be dismissed from service. The appellant submitted
his reply to the said show cause notice. The Management passed the
order of dismissal in view of the provisions of the Act, 1949. The Tribunal
also took into consideration the contents of the Bi-Partite Settlement
applicable in the case and rejected the appellant’s claim. The High Court
considered appellant’s grievance elaborately as is evident from the
impugned judgment. We could not persuade ourselves, in the aforesaid
fact-situation, that any other view could also be possible. In view of the
above, we find no force in the appeal and it is accordingly dismissed. No
order as to costs.
Comments: Supreme Court denied appeal for benefit of probation to the
accused.
(g) Reference
In The Supreme Court Of India
Criminal Appellate Jurisdiction
Criminal Appeal No. Of 2008
(Arising out of SLP (Crl.) No. 8113 of 2007)
M/s Precious Oil Corporation and Ors. ...Appellants
Versus
State of Assam ...Respondent
Brief Facts: Challenge in this appeal is to the judgment of a learned
Single Judgeof the Guwahati High Court upholding the conviction of the
appellants foroffence punishable under Section 7(1)(a)(i) of the Essential
Commodities Act, 1955 ( in short the ‘Act’). The allegation was that the
appellant had violated Clause 3 of the Lubricating Oil and Greases
(Processing, Supply & Distribution Regulation) Order, 1987 (in short the
‘Control Order’). Simple imprisonment of one month and fine of
Rs.3,000/- each with default stipulation was awarded to the accused
persons. The prosecution against the accused-appellants was initiated on
the basis of an offence report submitted by Sir Dhiraj Choudhury,
Inspector of Food and Civil Supplies, Assam, Guwahati PW-3 alleging
(309)
inter-alia that on 1-10-1996 he along with two other Inspectors of Food
and Civil Supplies Department visited the processing industry of
lubricating oil belonging to the appellant no.2, situated near Lankeswar,
Jalukbari, Guwahati and on such inspection, it was found that the
concern did not possess necessary license as required under the Control
Order and also proper books of account etc as required under the law
were not produced. The inspecting team found that no license could be
produced for the processing unit and thereby violated Clause 3 of the
Control Order. The accused had failed to obtain proper license as
required under law within 6 months of commencement of processing and
thereby has violated clause 5(5) of the Control Order. The inspecting
team collected and sent the samples of lubricating oil for necessary
analysis to thee approved laboratory. After such analysis, it was found
that the said lubricating oil could not be considered as Automotive
Lubricating Oil, thereby violating Clause 4 of the Control Order attracting
punishment for sale of adulterated seized from the appellants re-refined
lubricating oil in 380 sealed tins of 1 lubricating oil. The team litre each,
1,210 litres in 6 barrels containing 205 litres each, 19,475 litres of used
lubricating oil in 95 barrels containing 205 litres in each, 20 kgs. of
grease in one loose barrel, 920 numbers of empty tins of 1 litre capacity
for TOPOL 20 W/40, one book of accounts, an extract copy of the Display
Board of Stock and Prices displayed in the office premises, 3 litres of
TOPOL, 20 W/46 contained in 3 sealed tins. The inspector having found
prima facie violation of Clauses 3, 4 and 5(5) of the Control Order
punishable under Section 7 of the Act, submitted the offence report
against the appellants in the Court of the learned Sessions Judge,
Kamrup for necessary prosecution under the law. The accused-appellant
no.1 is the concern itself and the accused No.2 is the Proprietor of the
concern and accused no.3 is an employee of the concern. On the basis of
the aforesaid offence report, Sp1. Case No.5 of 97 was registered in the
Court of the learned Sessions Judge, Guwahati Summons having been
(310)
served, the appellants appeared in the case and vide order dated
19.8.1997, the learned trial judge explained the offences to them about
allegations of contravention of Clauses 3, 4 and 5(5) of the Control Order
punishable under Section 7(1)(a)(i) of the Act. Accused persons pleaded
not guilty and therefore trial was held.
Judgment: There are occasions when an offender is so anti-social that
his immediate and sometimes prolonged confinement is the best
assurance of society’s protection. The consideration of rehabilitation has
to give way, because of the paramount need for the protection of society.
We are, therefore, recommending suitable amendment in all the Acts, to
exclude probation in the above cases.” In the current Indian conditions
the probation movement not attained sufficient strength to correct these
intractables. Maybe, under more developed conditions a different
approach may have to be made. For the present we cannot accede to the
invitation to let off the accused on probation. The aforesaid position was
also highlighted in Pyarali K. Tejani v. Mahadeo Ramchandra Dange and
Ors. (1974 (1) SCC 167). Above being the position, there is no merit in
this appeal which is accordingly dismissed.
Comments: Supreme Court dismissed this appeal under the demerits of
facts above mentioned and refused to grant probation benefit to the
accused.
(h) Reference
In The Supreme Court Of India
Civil Appellate Jurisdiction
Civil Appeal No. 6423 Of 2010
(Arising out of SLP (C) NO. 4216 OF 2008)
Sushil Kumar Singhal …Appellant
Versus
The Regional Manager,
Punjab National Bank …Respondent

(311)
Brief facts: This appeal has been preferred against the Judgment and
Order dated 10.09.2007 passed by High Court of Punjab & Haryana in
Civil Writ Petition 14014 of 2007, by which the High Court had
dismissed the writ petition for quashing the award dated 3rd January,
2007, passed by the Central Government Industrial Tribunal-cum-
Labour Court-II at Chandigarh (hereinafter called as, “Tribunal”), by
which the Tribunal had upheld the dismissal of the appellant from
service on the ground of conviction of the appellant in criminal case
involving moral turpitude. Facts and circumstances giving rise to the
present case are that the appellant was appointed as a Peon in the
respondent-Bank, Kaithal Branch, on 01.12.1971 and stood confirmed
on the said post vide order dated 28.12.1977. The appellant was handed
over cash of Rs.5000/-, to deposit the same as dues for the Telephone
Bill in the Post Office. However, it was not deposited by the appellant,
therefore, the bank lodged FIR No. 171 under Section 409 of Indian Penal
Code, 1860 (hereinafter called “lPC”) against the appellant, on
27.04.1982, in Police Station, City Kaithal. Appellant was tried for the
said offence. After conclusion of trial, the appellant was convicted by the
competent Criminal Court vide Judgment and Order dated 28.01.1988.
The respondent-Bank issued a Show Cause Notice dated 01.03.1988 to
the appellant, proposing dismissal from service and asked the appellant
to show cause within a period of seven days. The appellant submitted the
reply dated 08.03.1988. However, the respondent-Bank dismissed the
appellant from service vide order dated 09.03.1988. Being aggrieved, the
appellant raised an industrial dispute under the Industrial Disputes Act,
1947 and the matter was referred to the Tribunal. In the meanwhile, the
appeal filed by the appellant against the order of conviction was decided
by the appellate Court vide judgment and order dated 29.5.1989. The
appellate Court maintained the conviction, but granted him the benefit of
probation under The Probation of Offenders Act, 1958 (hereinafter called
as,” Act 1958) and released the appellant on probation. The Tribunal
(312)
made the award dated 03.01.2007, rejecting the claim of the appellant
and holding his dismissal from service to be justified and in accordance
with law.
Judgment: The Management passed the order of dismissal in view of the
provisions of the Act, 1949. The Tribunal also took into consideration the
contents of the Bi Partite Settlement applicable in the case and rejected
the appellant’s claim. The High Court considered appellant’s grievance
elaborately as is evident from the impugned judgment. Supreme Court
could not persuade ourselves, in the aforesaid fact-situation, that any
other view could also be possible. In view of the above, Supreme Court
find no force in the appeal and it is accordingly dismissed. No order as to
costs.
Comment: Accordingly the above facts Supreme Court refused the
benefits of probation to the accused.
(i) Reference
In The Supreme Court Of India
Criminal Appellate Jurisdiction
Criminal Appeal No. _________of 2009
[Arising out of Special Leave Petition (Criminal) No. 7722 of 2008]
Sarju @ Ramu … Appellant
Versus
State of U.P. … Respondent
Brief facts: This appeal by special leave arises out of a judgment and
order dated 30th January 2008 passed by a learned single judge of the
High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in
Criminal Appeal No. 491 of 1991 whereby and where under the judgment
of conviction and sentence dated 4th September 1991 passed by the V
Additional Sessions Judge, Barabanki in Sessions Trial Nos. 393 of 1989
and 395 of 1989 convicting the appellant for commission of an offence
punishable under Section 8/21 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, “NDPS Act”) and sentencing him to
(313)
undergo 10 years’ rigorous imprisonment as also the fine of Rs.1 lakh,
and in default, to undergo one year’s rigorous imprisonment, was
affirmed. Shrikant Mishra was the Station House Officer (SHO) of
Safdarganj Police Station situate in the district of Barabanki. He and
other members of the police party were on a patrolling duty. They came
out of the Police Station in the night of 5th January 1989 with Constable
No.56 Ram Shankar Srivastava (P.W.3) and Constable No.277 – Vidya
Prasad Pandey. They reached near a village commonly known as
“Baghaura” in the official jeep No. UHG 4682, which was driven by one
Satyadev Ojha.. An informer allegedly reported to the appellants as also
one Shobhalal of village Baghaura and Ramdutt @ Dutta of village
Bariarpur illegally selling morphine in packets to the truck drivers and
the people of the area. According to the said informer, they were said to
have been sitting on the road side near the mill of one Vishwanath
Kashyap from 6 O’clock in the morning. Appellant along with said
Shobhalal and Ramdutt were said to have been identified by the said
police party to be sitting on the road side at about 6.15 a.m. They
became a bit perplexed and frightened after seeing the police party.
Judgment:
Supreme court referred to Section 33 of the NDPS Act. Section 33
of the NDPS Act reads as under: “33. Application of section 360 of the
Code of Criminal Procedure, 1973 and of the Probation of Offenders Act,
1958.- Nothing contained in section 360 of the Code of Criminal
Procedure, 1973 (2 of 1974) or in the Probation of Offenders Act, 1958
(20 of 1958) shall apply to a person convicted of an offence under this
Act unless such person is under eighteen years of age or that the offence
for which such person is convicted is punishable under Section 26 or
Section 27.” He, therefore, misread the entire provision. We do not see
any reason as to why such a provision had to be resorted to in the case
of one of the accused only. The High Court, in our opinion, also should
have drawn the attention of the learned trial judge on the glaring mistake
(314)
committed by him. For the reasons aforementioned, the impugned
judgment cannot be sustained. It is set aside accordingly.
The appeal is allowed. The appellant is in custody. He is directed
to be set at liberty forthwith unless wanted in any other case.
Comment: Supreme Court allowed this appeal and order to taken benefit
of probation law of the accused.
(j) Reference
Criminal Appeal No. 911 OF 2009
[Arising out of SLP (Crl.) No. 1527 of 2008]
Bala Baine Linga Raju …Appellant
Versus
State of A.P. …Respondent
Brief Facts: Appellant is before court aggrieved by and dissatisfied with
a judgment and order dated 23.04.2007 passed by a learned Single
Judge of the High Court of Judicature at Andhra Pradesh in Criminal
Appeal No. 1159 of 2002 whereby and whereunder it, while upholding
the judgment and conviction of sentence passed by the learned
Additional Sessions Judge under Section 304 Part I of the Indian Penal
Code and setting aside the order of sentence of imprisonment of seven
years, released the appellant under the Probation of Offenders Act, 1958
(for short “the Act”) by purporting to grant appropriate amount of
compensation to PW-2, directing:“…Thus, it is ordered that the appellant
shall be released under Section 4 of Probation of Offenders Act, 1958 on
his executing a personal bond for Rs. 10,000/- to keep peace for a period
of two years and on his further payment of compensation of Rs.
1,00,000/- (Rupees one lakh only) to P.W.2, wife of the deceased, under
Section 5 of the Probation of Offenders Act, 1958. As the provisions of
the Probation of Offenders Act, 1958 do not provide for default sentence
in case of failure to pay compensation and provide only for recovery of
the same as fine, it is specifically ordered that the compensation awarded
shall be treated as the one under Section 357 Cr.P.C. as well and in case
(315)
of failure on the part of the appellant to pay compensation, he shall
undergo imprisonment for three years. Time for payment of
compensation is three months from the date of receipt of a copy of this
order.” This Court while issuing notice directed the appellant also to
show cause as to why the sentence shall not be enhanced.
Before, however, we consider the merit of the matter, we may
notice the factual matrix involved herein. The parties are neighbours. The
incident took place on 24.08.1999 at village Chilkur. Allegedly, PW-2,
wife of the deceased while feeding her child scolded him describing him
as mischievous. Accused No. 2 thought that the said remarks of PW-2
were directed against her. She and her husband picked up a quarrel with
PW-2. The deceased, the husband of PW- 2, came there and got himself
involved in the quarrel. Appellant who was inside the house came out
with a scissor and stabbed the deceased.
Judgment: Section 4 of the Act empowers the court to release a person
on probation of good conduct, subject to the conditions that the offence
is not punishable with death or imprisonment for life. Only in the event,
the provisions of the said Act are applicable, Section 6 of the Act can be
taken recourse to. Appellant was charged with commission of an offence
under Section 302 of the Indian Penal Code. He has been found guilty
under Section 304 Part I thereof which provides for imprisonment for life
or imprisonment of either description of a term which may extend to
imprisonment for life. In this view of the matter, the provisions of the Act
are not applicable. Mr. Anand submits that the learned Trial Judge has
not heard the appellant on the question of sentence as is provided for
under Sub-section(2) of Section 235 of the Code of Criminal Procedure.
Although the learned counsel is correct, but keeping in view the fact that
the conviction of the appellant was under Section 304 Part I of the Indian
Penal Code, Supreme Court are of the opinion that even otherwise the
sentence imposed on him is just and proper. Therefore, have no
hesitation in holding that the High Court was not correct in invoking the
(316)
provisions of the Act. While setting aside that part of the judgment of the
High Court, Supreme Court restore the judgment of conviction and
sentence passed by the learned Trial Judge. The appeal is disposed of
with the aforementioned directions.
Comment: Supreme Court favoured to previous appeal before High
Court and disposed matter to the probation services to the accused.
(k) Reference
In The Supreme Court Of India
Criminal Appellate Jurisdiction
Criminal Appeal No.171 Of 2013
(@ Special Leave Petition (Crl.) No. 4378 OF 2012)
Shyam Lal Verma ...Appellant
Versus
Central Bureau Of Investigation ....Respondent
Brief Facts: The appellant is a retired employee of Post Office. The
incident occurred in 1993-94. The allegation against him is that he
misappropriated to the extent of Rs.1,35,240/- (Rupees one lakh thirty
five thousand and two hundred forty). The employees of various
departments deposited their amount, but the appellant did not remit the
amount and failed to make entry in the ledger. He was charged under
Section 477-A IPC read with Section 3(1)(c) and 13(2) of the Prevention of
Corruption Act 1988. After fullfleged trial, the Trial Court convicted him
under the above mentioned Sections. However, instead of awarding
sentence, the Trial Court released the appellant under the Probation of
Offenders Act,1958 on executing a personal bond in the sum of
Rs.50,000/- and furnishing two sureties each of the like amount for a
period of one year. He was also directed to maintain peace and good
behaviour during this period.
Judgment: Consequently, the appeal is dismissed. In view of the
dismissal of the appeal, the appellant shall surrender and has to undergo

(317)
remaining period of sentence. His bail bonds executed pursuant to our
order dated 05.07.2012 shall stand cancelled.
Comments: Supreme Court cancelled bail, bond of the accused and not
in favoured to grant probation benefit to the accused.
(l) Reference
In The Supreme Court Of India
Criminal Appellate Jurisdiction
Crl.M.P . No . 7477 Of 2012
In
S.L.P(Crl.) No.2430 of 2012
Sunil Kumar …Petitioner
Versus
State of Haryana …Respondent
Brief Facts: Once it had been commented that anti-social elements i.e.
FERA violators, bride burners and whole horde of reactionaries have
found their safe haven in the Supreme Court and such a comment
became subject matter of contempt of this Court and had to be dealt with
by this Court in P.N. Duda v. P. Shiv Shanker & Ors., AIR 1988 SC 1208.
This Court in Rathinam v. State of Tamil Nadu & Anr., (2011) 11 SCC
140 quoted the observations made by the Page 2 High Court in that case
expressing its views that common man must feel assured to get justice
and observed as under: “Let not the mighty and the rich think that courts
are their paradise and in the legal arena they are the dominant players.”
These judgments make one thing crystal clear that criminals do not
hesitate approaching courts even by abusing the process of the court and
some times succeed also. The instant case belongs to the same category.
Petitioner feels that merely because he is a black-marketeer and
succeeded in exploiting the helplessness of the poor people of the Society
and is capable of engaging lawyers, he has a right to use, abuse and
misuse the process of the court and can approach any court any time
without any hesitation and without observing any required procedure
(318)
prescribed by law. An FIR dated 15.9.1998 was lodged against the
petitioner and one other person under Section 7 of Essential
Commodities Act, 1955 (hereinafter called the Act 1955) as they were
found in possession of 1370 litres of blue kerosene and indulging in
unauthorised sale thereof in violation of the provisions of Section 7 of the
Act, 1955. After completing investigation chargesheet was filed and trial
commenced. The trial court vide judgment and order dated
27.10.1999/2.11.1999 found them guilty of the said offence and
awarded sentence of imprisonment for one year alongwith a fine of
Rs.2,000/- each. Against the aforesaid order, the appeal of the petitioner
stood dismissed by the High Court vide judgment and order dated
30.7.2010. Petitioner preferred an application dated 25.7.2011 before the
High Court for modifying the aforesaid judgment and order dated
30.7.2010 giving him the benefit of the provisions of Section 360 of Code
of Criminal Procedure, 1973 (hereinafter called Cr.P.C.) and/or Section 4
of the Probation of Offenders Act, 1958 (hereinafter called the Act 1958).
The said application was dismissed vide impugned order dated
19.9.2011. It may be pertinent to mention that against the judgment and
order dated 30.7.2010, the petitioner had filed SLP (Crl.) no.1469 of 2011
on 13.10.2011 which was dismissed by this Court vide order dated
27.1.2012. Subsequent thereto this special leave petition has been filed
on 29.2.2012 challenging the order dated 19.9.2011. No explanation has
been furnished as why the present petition could not be filed during the
pendency of the earlier SLP or both the orders could not be challenged
simultaneously as the order impugned herein had been passed much
prior to the filing of the first SLP on 13.10.2011, and petitioner
surrendered to serve out the sentence only on 13.1.2012. The High Court
dealt with various propositions of law while dealing with the averments
raised on his behalf including the application of the provisions of Section
362 Cr.P.C. which puts a complete embargo on the criminal court to
reconsider any case after delivery of the judgment as the court becomes
(319)
functus officio. This Court in a recent judgment in State of Punjab v.
Davinder Pal Singh Bhullar & Ors. etc., AIR 2012 SC 364 dealt with the
issue considering a very large number of earlier judgments of this Court
including Vishnu Agarwal v. State of U.P. & Anr., AIR 2011 SC 1232 and
came to the conclusion.
Judgment: Therefore, the court should not lightly resort to the
provisions of the Act 1958 in case of an accused found guilty of offences
under the Prevention of Food Adulteration Act. In M/s. Precious Oil
Corporation & Ors. v. State of Assam, AIR 2009 SC 1566, this Court
dealt with the issue of application of the Act 1958 in case of offences
punishable under Section 7 of the Act, 1955. The Court did not grant the
benefit of the said provisions to the appellant therein placing reliance
upon the judgment of this Court in Pyarali K. Tejani v. Mahadeo
Ramchandra Dange & Ors., AIR 1974 SC 228 wherein this Court has
held as under: “The kindly application of the probation principle is
negatived by the imperatives of social defence and the improbabilities of
moral proselytisation. No chances can be taken by society with a man
whose anti-social operations, disguised as a respectable trade, imperil
numerous innocents. He is a security risk. Secondly, these economic
offences committed by white-collar criminals are unlikely to be dissuaded
by the gentle probationary process. Neither casual provocation nor motive
against particular persons but planned profit-making from numbers of
consumers furnishes the incentive - not easily humanised by the
therapeutic probationary measure.” Thus, in view of the above, the relief
sought by the petitioner cannot be granted. Petition is misconceived and
untenable. The petition being devoid of any merit, is accordingly
dismissed with the cost of Rs.20,000/- which the petitioner is directed to
deposit within a period of four weeks with the Supreme Court Legal
Services Authority and file proof thereof before the Registrar of this
Court, failing which the matter be placed before the Court for appropriate
direction for recovery.
(320)
Comment: Supreme Court dismissed this appeal after hearing and not
favoured to grant probation benefit to the accused.

CONCLUDING REMARKS:
In above mentioned cases Supreme Court has provided new
dimension of probation law and has developed new guidelines for
the application on probation of offenders act, 1958. and
questioned , varied high irregularities in proceedings of lower
courts and given direction strongly to adopt recent guidelines
during any disposal of probation of offenders petition in courts.
Supreme court has observed main issue and given very sharp
judgments related to probation of offenders act, 1958. some quotation
/citations have been described on above mentioned cases and some
refined lines of that cases have been selected by the researcher which
has given under the following:-
In Sunil Kumar V/S State of Haryana …,the supreme court
had not accepted petitioner on the ground of unnecessary delay to
file appeal and overviewed that Delay condoned. but in the another
special leave petition of SHYAM LAL VERMA V/S CENTRAL BUREAU OF
INVESTIGATION , Supreme court admitted his appeal and leave granted
after having this view that By the impugned order, the High Court
allowed the appeal of the CBI and sentenced him for a period of one year
under Sections 477-A IPC and under Section 13(1)(c) read with Section
13(2) for a further period of one year. Both the sentences were directed to
run concurrently. Questioning the order of the High Court sentencing
him, as stated above, the accused preferred the present appeal by way of
special leave. Heard learned senior counsel appearing on behalf of the
appellant and learned counsel appearing on behalf of the respondent-
CBI. The only point for consideration in this appeal is, whether the
Probation of Offenders Act is applicable to prevention of correction act
In the Bala Baine Linga Raju … V/S State of A.P. …
(321)
Supreme Court observed that the learned Trial Judge has not
heard the appellant on the question of sentence as is provided for under
Sub-section (2) of Section 235 of the Code of Criminal Procedure.
Although the learned counsel is correct, but keeping in view the fact that
the conviction of the appellant was under Section 304 Part I of the Indian
Penal Code, we are of the opinion that even otherwise the sentence
imposed on him is just and proper. We, therefore, have no hesitation in
holding that the High Court was not correct in invoking the provisions of
the Act. While setting aside that part of the judgment of the High Court,
we restore the judgment of conviction and sentence passed by the
learned Trial Judge. The appeal is disposed of with the aforementioned
directions.
IN SARJU @ RAMU … V/S STATE OF U.P. …, The Supreme Court
observed and admitted petitioner SLP , LEAVE GRANTED For the
reasons aforementioned, the impugned judgment cannot be sustained. It
is set aside accordingly. The appeal is allowed. The appellant is in
custody. He is directed to be set at liberty forthwith unless wanted in any
other case.
Supreme Court's view –
A distinction however has been drawn by the Apex Court (between
such cases under the enactments already in force when the Probation of
Offenders Act, 1958 came into force and those under the enactments
enacted afterwards. Both the Secs. 3 and 4 of this Act providing the
benefit of probation to the offenders containment-obstante clauses and
thus override the provisions of any law laying down minimum sentence
for any offence and thereby restricting the application of these sections.
The views expressed as above therefore, appear to be legally sound and
correct so far as the minimum sentence is concerned. The non-obstante
clauses in Secs. 3 and 4 will however, not apply to offences under the
enactments passed after the enforcement of Probation of Offenders Act,
1958.
(322)
This matter earlier came up for consideration before the Supreme
Court in Superintendent, Central Excise, Bangalore v. Bahubali,1 in a
case under Defence of India Act, 1962 and it was held therein that in
cases where a specific enactment, enacted after the Probation of
Offenders Act prescribes a minimum sentence of imprisonment, the
provision of Probation of Offenders Act cannot be invoked if the Special
Act contains any provision to enforce the same without reference to any
other Act containing a provision, in derogation of the special enactment,
there is no scope for extending the benefit of Probation of Offenders Act
to the accused. Relying on the said decision the Apex Court in a recent
case of State through S.P., New Delhi v. Ratan Lal Arora, 2 has held
that unlike the provisions contained in Sec. 5(2) of the old Prevention of
Corruption Act of 1947 providing for imposition of a sentence lesser than
the minimum sentence of one year therein for any "special reasons" to be
recorded in writing, the present Act of 1988 did not carry any such power
to enable the Court concerned to show any leniency below the minimum
sentence stipulated.
Consequently the High Court committed a grave error in extending
the benefit of Probation of the Offender who had committed the offences
under Secs. 7 and 13(2) of the Prevention of Corruption Act, 1988
punishable with the minimum sentence of imprisonment for six months
and one year respectively.
After the verdict of the Supreme Court the law now seems to be
well-settled that the provisions of Probation of Offenders Act, 1958
cannot be invoked in the cases under an enactment prescribing
minimum sentence of imprisonment where it was enacted after the
enforcement of the Probation of Offenders Act, 1958 but there is not
such bar to extend the benefit of probation in the cases covered under
the earlier enactments.

1 A.I.R. 1979 S.C. 1271.


2 (2004) 2 J.C.C. 1053.

(323)
The Supreme Court in Chhanni v. State of U.P.3 reiterated that
enforcement of Probation of Offenders Act, 1958 in particular area
excludes the applicability of provisions of Section 360 of Code of Criminal
Procedure, 1973 and the scope of Section 4 of the Probation of Offenders
Act is much wider than that of Section 360, Cr.P.C., which relates only to
persons not under the age of 21 years, convicted for offence punishable
with fine only or with imprisonment up to 7 years, any woman convicted
of an offence not punishable with death or imprisonment for life.
Section 360, Cr.P.C. does not provide any role for Probation
Officers in assisting the Courts in relation to supervision and other
matters while Probation of Offenders Act does provide for it. Further,
Section 12 of the Probation of Offenders Act states that a person released
on probation shall not suffer any disqualification attached to conviction
of an offender under any law, but Section 360 of Cr.P.C. does not contain
any such provision. Therefore, by virtue of Section 8(1) of the General
Clauses Act, where the provisions of Section 360 of the Code of Criminal
Procedure will not be applicable.
In the instant case, the appellant was convicted for offence
punishable under Sections 304, Part II/323/149 and Section 147 of
I.P.C. and was sentenced to 5 years' rigorous imprisonment. On appeal
the High Court of Allahabad altered the conviction to that of simple hurt
under Section 323, I.P.C. and the sentence was reduced to one year. The
appellant raised the plea of benefit of release on probation under Section
360, Cr.P.C. or Section 4 of the Probation of Offenders Act. The Supreme
Court held that rejection of such application by the High Court was
proper as it was made subsequent to modification of sentence. The
Court, however directed the High Court to reconsider the case.

3 AIR 2006 SC 3051.

(324)
8.5 Overview of High Court of Madhya Pradesh
In present scenario, the Madhya Pradesh High Court observed new
dimensions for law of probation for the benefit of accused. There are
some leading cases where High Court of Madhya Pradesh pronounced
latest decisions for law of probation specially Madhya Pradesh.
Ramesh Kumar @ Heeralal vs The State Of M.P. on 8 May, 2012
Entitled to be given the benefit of Probation of the Offenders Act
and prayed to extend such benefit ... either for extending the acquittal or
benefit of Probation of the Offenders Act to the applicant and prayed for
dismissal in Madhya Pradesh High Court
The State Of M.P. vs Amarnath on 26 June, 2012
benefit of provisions of Section 3 of Probation of Offenders Act. 11.
Consequently, appeal filed by the State is hereby ... released on
probation under Section 3 of Probation of Offenders Act after giving due
admonition. 6 Criminal Appeal No.1887 in Madhya Pradesh High Court
The State Of M.P. vs Jagbandhu & Ors. on 29 June, 2012
alias Balram on probation under Section 3 of Probation of Offenders
Act. 14. Under such circumstances, since respondents ... after giving due
admonition under Section 3 of Probation of Offenders Act. 15. Presence
of the respondents is no more in Madhya Pradesh High Court
Rameshwari Malviya vs Sushila Dhruve on 26 July, 2012
wherein it has been held that benefit of Probation of Offenders Act (for
short 'the Act')to the accused ... well as Section 12 of the Probation of
Offenders Act, in the opinion of this court, it would be just in Madhya
Pradesh High Court
Sushila Dhurvey vs The State Of Madhya Pradesh on 26 July, 2012
wherein it has been held that benefit of Probation of Offenders Act (for
short 'the Act')to the accused ... well as Section 12 of the Probation of
Offenders Act, in the opinion of this court, it would be just in Madhya
Pradesh High Court
Jakir Khan vs The State Of Madhya Pradesh on 28 February, 2012
(325)
applicant may be enlarged on probation under the Probation of
Offenders Act. 7. At present there is no basis ... applicant is enlarged on
probation under the Probation of Offenders Act then due to that
conviction he may not lose in Madhya Pradesh High Court
Boocha @ Daulat Singh & Ors. vs The State Of M.P. on 21 February,
2012 view, the benefit of section 4 of the Probation of Offender Act be
extended to them. He further said that ... appellants or for extending the
benefit of Probation of Offenders Act to them or in any case to reduce
in Madhya Pradesh High Court
Deepak Kumar & Anr. vs The State Of M.P. on 25 January, 2012
submission firstly for extending the benefit of the Probation of the
Offenders Act to the appellants on the background that ... extending the
acquittal or extending the benefit of Probation of the Offenders Act or in
any case, for reducing at Madhya Pradesh High Court

Ajay Kumar & Ors. vs The State Of M.P. on 30 August, 2012


probation by granting the advantage of the Probation of Offenders Act.
However, the appellants have faced the trial and appeal at Madhya
Pradesh High Court
Kailash & Ors vs The State Of M.P. on 8 May, 2012
inclined to extend the benefit of the Probation of the Offenders Act to
them. Accordingly, it is held that ... entitled for extending the benefit of
Probation of Offenders Act. 6. Coming to consider the prayer of the
applicants' counsel at Madhya Pradesh High Court.

(326)
Reference
HIGH COURT OF MADHYA PRADESH ; JABALPUR
Cr.R.No. 1344/2000
Ramesh Kumar alias Heeralal.
Vs.
State of M.P.

Brief Facts:
The applicant/accused has preferred this revision under section 397
read with 401 of the Cr.P.C being aggrieved by Order dated 28.3.2000
passed by the II Add. Sessions Judge, Raisen in Cr.A.No.905/96 whereby
upholding his conviction under section 379 of the IPC awarded by the
trial court he has been directed to undergo for RI
1. ½ years with fine of Rs.200/-, in default of depositing such fine
amount for further 15 days .
2. The facts giving rise to this revision in short are that on 11.8.84,
the complainant Bhura Singh lodged the FIR (Ex.P/6) at Police
Station Dehgaon district Raisen contending that during the
intervening night of 8/9.8.84 some unknown person has stolen his
buffalow from village Dabur. After registration of the offence, the
matter was investigated. In pendency of such investigation, the
applicant was arrested in connection of section 102 of the Cr.P.C
by Police Station Dehat Vidisha and one buffalow was also seized
from him. On receiving such information by aforesaid Police
Station from P.S. Dehat Vidisha, the identification parade of said
buffalow was carried-out in which, the aforesaid complainant
identified the same as his buffalow. On completion of the 2
investigation the applicant was charge sheeted for his prosecution
under section 379 of the IPC. On framing the charge of such
offence, the applicant abjured the guilt, on which, the trial was
(327)
held. On appreciation of the evidence, after holding guilty to the
applicant for the aforesaid offence, he was sentenced for RI 2 years
with fine of Rs.200/-.
3. On filing the appeal by the applicant, by affirming the aforesaid
conviction, his jail sentence was reduced from 2 years RI to 1 ½
years RI by maintaining the amount of fine. Accordingly, the
appeal was dismissed, on which, the applicant has come to this
court with this revision.
4. It is apparent fact on record that during trial the applicant was
remained in judicial custody between the period 9.6.96 to 20.6.96
i.e 11 days, between 14.9.99 to 17.9.99 i.e 3 days, between 27.8.99
to 1.9.99 i.e 6 days and from the date of passing the judgment by
the trial court on 2.9.99 till passing the impugned judgment by the
appellate court 28.3.2000 the applicant suffered the jail sentence
out of the awarded jail sentence. On filing the present revision, he
was released on bail in compliance of the order dated 27.11.2000
suspending his jail sentence but subsequently, on account of non-
appearance of the applicant in compliance of the aforesaid bail
order, in compliance of order dated 3.8.2001 in execution of the
warrant of arrest, he was taken into custody and sent to jail and as
per proceedings dated 8.10.2001, based on some information from
the Central Jail, Bhopal, the applicant has been released from
such jail after suffering the entire jail sentence including the
sentence imposed in default of depositing the fine amount.
5. Smt Pratibha Mishra, counsel of the applicant after taking me
through the record of the trial court including the evidence led by
the parties as well as the exhibited papers of the charge sheet
argued that on proper appreciation of the evidence, the impugned
conviction of the applicant is not sustainable. In 3 continuation
she said that in case the impugned conviction is affirmed by this
court then in that circumstance considering the fact that the
applicant did not possess any criminal antecedents and he being
first offender, is entitled to be given the benefit of Probation of the

(328)
Offenders Act and prayed to extend such benefit to the applicant
by allowing this revision.
6. On the other hand, Ku Vandana Shrivastava, learned Panel
Lawyer, by justifying the impugned conviction and sentence of the
applicant argued that the same being based on proper appreciation
of the evidence is in conformity with law and the same does not
require any interference at this stage either for extending the
acquittal or benefit of Probation of the Offenders Act to the
applicant and prayed for dismissal of this revision.
7. Having heard the counsel, keeping in view their argument, I have
carefully gone through the record. It is apparent from the record
that immediately after theft of the buffalow, the complainant
lodged the FIR (Ex.P/6). In investigation, after recovery of the
buffalow from the applicant on carrying-out the identification
parade (Ex.P/3), such buffalow was identified by the complainant
in presence of Sarpanch of the village as his buffalow. On
recording the deposition complainant Bhura Singh (PW 1) has
proved the FIR . His testimony is further supported by the
independent witnesses Mohan Singh who is also the witness of the
identification para (Ex.P/3). The identification parade is further
proved by the Sarpanch Mahendra Singh (PW 4) by whom such
parade was carried-out. The recovery of such buffalow from the
possession of the applicant has been proved by Narmada Prasad
Sahu (PW 7) the retired Asst. Sub Inspector of Police as he seized
the buffalow by preparing the seizure memo (Ex.P/2) from the
possession of the applicant and the same has been proved by him
in his deposition. So, in the aforesaid premises even on re-
appreciation of the evidence, I have come to this 4 conclusion that
the trial court as well as the appellate court have not committed
any error in appreciation of the evidence in holding guilty to the
applicant for the aforesaid offence. In such premises, the findings
of the courts below holding guilty to the applicant is hereby
affirmed.

(329)
8. Coming to consider the alternate prayer of the applicant for
extending the benefit of Probation of the Offenders Act to the
applicant is concerned, looking to the nature of the offence and the
manner in which it was committed by the applicant as he has
committed theft of buffalow of his known person, I am not inclined
to extend the benefit of Probation of the Offenders Act to the
applicant, hence, such prayer of the applicant's counsel is hereby
rejected. As the applicant has already suffered the awarded jail
sentence for the aforesaid offence including the sentence imposed
in default of depositing the fine amount, therefore, after affirming
his conviction and sentence, nothing remains in this revision for
adjudication.
Decision

In view of the aforesaid, this revision being devoid of any merits, by


affirming the impugned judgment holding conviction and sentence
against the applicant, is hereby dismissed.
Comments:-
High Court of Madhya Pradesh observed, there is no merit in this petition
and denied to grant probation benefits to the accused thus petition
dismissed.

Reference
(2008) 1 MLJ (Crl) 1181 (SC)
Sudesh Kumar Vs. State of Uttarkhand
Indian Penal Code ( 45 of 1860), Section 392 read with Section 34 -
Brief Facts:-
Probation of Offenders Act (20 of 1958), Sections 3,4, and 6 - Robbery
case – Convicted by trial Court - Appeal filed - High Court has confirmed
conviction - Order challenged - Before Supreme Court only one point was
urged that the accused at the time of commission of the crime was below
twenty one years, as such he claimed benefit of Section 6 of Probation of

(330)
Offenders Act (20 of 1958) - Accused who is below twenty one years of
age found guilty of having committed an offence punishable with
imprisonment which is not the imprisonment for life shall not be
sentenced to undergo imprisonment unless the Court is satisfied that
having regard to the nature of the offence and the character of the
offender, it is not desirable to deal with under Section 3 or 4 of Probation
of Offenders Act (20 of 1958) - Provision further mandates that the Court
can impose sentence of imprisonment who is below twenty one years of
age after recording reasons for doing so - Crucial date on which the age
had to be determined being not the date of offence, but the date of which
finding of guilty had to be passed - Decision of
Constitutional Bench in Pratab Singh V. State of Jharkhand
case AIR 2005 SC 2731 relating to reckoning date for determining the
age of juvenile under the Juvenile Justice (Care and Protection of
Children) Act (56 of 2000) would not be held to be a decision on
interpretation of Section 6 of Probation of Offenders Act (20 of 1958).
Judgement :-
Decisions interpreting various provisions of one statute will not have the
binding force while interpreting the provisions of another statute - Held,
true copy of the transfer certificate purported to have been issued by the
Principal cannot be said that it is credible evidence, particularly it was
not produced before the Courts below - Accused is not entitled to claim
the benefit under Section 6 of Probation of Offenders Act (20 of 1958),
since he was more than twenty one years on the date of judgment of
conviction. Further the benefit of Probation of Offenders Act (20 of 1958)
has not been raised before the trial Court and the High Court -
Conviction confirmed - Appeal dismissed.

(331)
Reference
Madhya Pradesh High Court
Mohammad Jabbar vs The State Of Madhya Pradesh on 30 August,
2012
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT, JABALPUR
SINGLE BENCH
PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA
CRIMINAL APPEAL NO.1028/2012
Brief Facts
The appellants have preferred this appeal against the judgment dated
28.4.2012 passed by the learned Sessions Judge/Special Judge under
the SC/ST (Prevention of Atrocities) Act Singrauli in Special Case
No.07/2010 whereby the appellants were convicted and sentenced for
the following offences : Section Act Sentence Fine Sentence, in amount
default of payment of fine. 147 I.P.C Six months R.I. Nil Nil 148 I.P.C.
one year's R.I. Rs.500/- One month's R.I. 307 r/w I.P.C. Five year's R.I.
Rs.1000/- two month's R.I. 149 506(2) I.P.C. one year's R.I. Rs.500/-
One month's R.I. 2 Criminal Appeal No. 1028 of 2012 All the jail
sentence shall run concurrently.
2. The prosecution's case in short is that on 1.8.2010 at about 10.a.m in
the morning the victim Rangai (PW4) was going to a well to fetch some
water at village Kanji, Police Station Baidhan, District Singrauli. The
appellants came with sticks etc. and shouted upon the victim because a
civil case was pending against them lodged by the victim and thereafter,
they assaulted the victim by sticks causing him various injuries on his
legs and hands. The victim Rangai was taken to the hospital whereas his
son Babuaram (PW14) had lodged an FIR Ex.P/24 (Dehati Nalishi) with
the Police Officer, who came to the Nehru Hospital and thereafter, a case
was registered. Dr. Saurabh (PW8) examined the victim Rangai in Nehru
Century Hospital, Jayant and gave his report Ex.P/26. He found various
(332)
wounds on both of the legs and both of the hands of the victim Rangai.
Out of them one penetrated wound was found on left arm. Clinically he
found that the concerned bone of both the hands were broken. However,
he referred the patient for radiological examination. Dr. S. K. Mual
(PW16) examined the victim Rangai radiologically and found that he
sustained fracture of tibia and fibula bones in both the legs. In right leg,
patella bone was also found broken. In left hand, radius and ulna were
found broken. He gave his report Ex.P/33. Dr. Devnath (PW17) treated
the victim Rangai in the hospital and he gave a discharge report Ex.P/34.
The victim Rangai was discharged in a condition when both of his legs
were broken in so many pieces. After due investigation a charge sheet
was filed 3
Criminal Appeal No. 1028 of 2012
before the CJM, Singrauli who, committed the case to the Special
Judge/Sessions Court.
3. The appellants abjured their guilt. They did not take any specific plea
but, they have stated that the land in dispute was allotted to the
appellants and therefore, a stay was granted by the Tahsildar while the
victim was constructing a house in that land. Thereafter, a compromise
took place that Rangai shall continue in the house and land will be
cultivated by the appellants. On the previous day of the incident Rangai
started cultivation on the land by flouting the compromise. In defence
one Niazuddin (DW1) was examined.
4. Learned Special Judge under SC/ST (Prevention of Atrocities) Act
(hereinafter it may be referred as the 'Special Act') after considering the
evidence adduced by the parties convicted and sentenced the appellants
as mentioned above.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellants have submitted that looking to
the entire incidence and the injuries caused to the victim Rangai, no
offence under Section 307 of I.P.C is made out. At the most offence under
(333)
Section 326 of I.P.C may constitute. In support of his contention, he
placed reliance on the judgment of Hon'ble the Apex Court in the case of
"Pashora Singh and another Vs. State of Punjab" (AIR 1993 SC 1256). It
is also submitted that the appellants did not assault the victim. There is
no specific allegation that who assaulted the victim. Common intention of
the appellants was no where established. It is no 4
Criminal Appeal No. 1028 of 2012
where proved that an unlawful assembly was constituted. Under such
circumstances, the conviction directed by the trial Court is challenged. In
alternate it is submitted that the appellants would have been released on
probation or they could have been imposed with fine only. They remained
in the custody for few years and therefore, they may not be sent to the jail
again.
7. On the other hand the learned Public Prosecutor has submitted that
the conviction and sentence directed by the trial Court appears to be
correct and no interference is required in the appeal.
8. After considering the submissions made by learned counsel for the
parties it is to be considered that whether the appellants could not be
convicted for offence punishable under Section 307 of the I.P.C ?
Whether the appellants can be convicted for any offence with help of
Section 149 of I.P.C ? And whether the sentence imposed upon the
appellants can be reduced ?
9. Rangai (PW4), Babuaram (PW14) and Ramanuj (PW11) have stated
about the incident whereas Ramkaran (PW1), Dinesh Kumar (PW2),
Brahaspati (PW9) etc. have turned hostile. Babuaram son of the victim
has stated that due to terror of one Dactor Singh no independent witness
could say against the appellants. These witnesses have stated before the
Court by which it would be clear that their evidence is confirmed by the
medical evidence. The victim Rangai gave a dying declaration Ex.P/22
which was duly proved by the Naib Tahsildar, B. L. 5
Criminal Appeal No. 1028 of 2012
(334)
Baheriya (PW5) but, Rangai took a somersault that he did not give any
dying declaration. It appears that since the third injury of the victim
Rangai was found to be punctured wound therefore, now he has turned
to say that the appellants had gandasas and ballams in their hand and
they assaulted him. However, looking to the injuries caused to the victim
Rangai and timely lodged Dehati Nalishi which was duly proved by the
witness Babuaram and the testimony of Babuaram, the entire
prosecution story is duly corroborated and it is established that the
appellants assaulted the victim by sticks causing him various injuries.
Out of them three injuries were grave.
10. The appellants took a plea of right of private defence but, in the
present case no right of private defence arose to the appellants. For the
sake of argument it may be presumed that the land was allotted to the
appellants and they were cultivating the land and if on the previous day
the victim Rangai ploughed the land by a tractor with the help of some
persons then on the next day i.e. the day of the incident no right of
private defence accrued to the appellants due to the act done by the
victim on the previous day. It is apparent that at the time of the incident
the victim was going to fetch some water and he was not doing anything
in the field. No right of private defence relating to the person or property
accrued to the appellants. Similarly, the appellants went with arms to
the spot and it is no where mentioned that the victim gave any sudden or
grave provocation to the appellants. On the contrary the appellants
assaulted the 6
Criminal Appeal No. 1028 of 2012
victim in a forceful manner and therefore, it is established that they
assaulted the victim voluntarily. Similarly it is also established that each
of the appellant took part in the crime in assaulting the victim and the
victim sustained various injuries in the result and therefore, their
common intention and common object is also established. Five persons
assaulted the victim in such a manner therefore, it is clear that an
(335)
unlawful assembly was duly constituted. The trial Court has rightly
convicted the appellants for offence punishable under Section 148 of the
I.P.C. Offences under Sections 147 and 148 of I.P.C are of similar nature
and offence under Section 148 of I.P.C is grave and therefore, there is no
need to convict the appellants for offence punishable under Section 147
of I.P.C separately.
11. So far as the offence under Section 307 of I.P.C is concerned it is true
that the victim Rangai sustained three fractures in all. Two fractures on
both of his legs and one fracture on his right hand. Initially Dr. Saurabh
has stated that injuries caused to the victim Rangai were grave but, he
did not mention that the injuries were fatal in nature. The bones of the
victim Rangai were broken in legs and hands which are not fatal parts of
the body whereas, no injury was caused to the victim on any vital part of
the body. No any bone was found fractured which covered the vital part
of the body. No assault was caused by the appellants on the head, chest
or abdomen of the victim and the appellants caused only four injuries in
all to the victim. Under such circumstances, it is apparent that the
appellants were not 7
Criminal Appeal No. 1028 of 2012
intended to kill the victim Rangai nor the injuries of the victim Rangai
were found to be fatal. Under such circumstances, in the light if
judgment passed by Hon'ble the Apex Court in the case of Pashora Singh
(supra) the appellants could not be convicted for the offence punishable
under Section 307 of the I.P.C. In the case of Pashora Singh (supra)
conviction was reduced from offence punishable under Section 307 of
I.P.C to one under Section 326 of I.P.C. In the present case there is no
prosecution story that the appellants assaulted the victim by any sharp
cutting weapon or deadly weapon therefore, in the present case looking
to the overt acts of the appellants only offence punishable under Section
325 of I.P.C will be constituted and therefore, the trial Court has erred in
convicting the appellants for offence punishable under Section 307 read
(336)
with Section 149 of I.P.C. They should be convicted for offence
punishable under Section 325 read with Section 149 of I.P.C.
12. So far as the sentence is concerned the appellants are in custody
since 4.8.2010 and therefore, they remained in the custody for more
than two years. Sentences granted for offence punishable under Sections
147, 148 and 506(2) of the I.P.C were already executed because it was
directed by the trial Court that the sentences shall run concurrently and
therefore, at present sentence for offence punishable under Section 325
of I.P.C is to be considered only.
Judgment:-
13. The appellants were first offenders and remained in the custody for
more than two years. But, looking to the their overt 8
Criminal Appeal No. 1028 of 2012
Act they can not be released on probation. There is no ground by which
they may be released on probation. Similarly looking to the gravity of the
offences they cannot be released on imposition of some fine but, for the
offence punishable under Section 325 of I.P.C jail sentence of 2 or 2 ½
years would be sufficient in the present case. The appellants have
already undergone in the custody for more than two years and therefore,
it would be proper that their sentence may be reduced to the period
which they have already undergone in the custody with enhancement of
some fine.
14. On the basis of the aforesaid discussion the present appeal filed by
the appellants is hereby partly allowed. The conviction and sentence
directed by the trial Court for the offence punishable under Section 147,
148 and 506(2) of the I.P.C are hereby maintained but, conviction as well
as sentence directed for offence punishable under Section 307 read with
section 147 of the I.P.C is hereby set aside. The appellants are convicted
for offence punishable under section 325 read with section 149 of the
I.P.C and sentenced for the period which they have already undergone in
the custody but, a sum of Rs.2500/- is imposed as a fine for that offence
(337)
on each of the appellants. In default of payment of fine each of them
shall undergo for three months rigorous imprisonment in addition. All
the sentences shall run concurrently except of the default sentence.
15. The Registry is directed to prepare the supersession warrants
accordingly so that the appellants may be released forthwith if they
deposit the fine amount.

Reference
2010 -1- L.W.(Crl) 697
P.S. Sethuraman
Vs
P. Elavazhagan

Brief Facts:-
Negotiable Instruments Act, Section 147 (Amendments introduced
with effect from 6.2.2003 making he offence as compoundable offence),
Probation of Offenders Act, Section3, Criminal P.C., Section
361/Compounding of offence.
Revision was preferred against dismissal of petition filed before
Magistrate by the Accused under Section 258 r/w 320 Cr.P.C with a
prayer to treat the compromise memo filed by parties dated 07.10.2008
as compounding petition and to stop all the proceedings of the case and
to discharge the accused.
Question which arises for consideration is “Whether the court can
terminate the proceedings acting upon the payment made in full due
under the cheque during the pendency of the criminal proceeding, in the
absence of any request for withdrawal or for
compounding of the offence by the complainant?”.
Held: Receipt of the cheque amount has not been denied by the
respondent herein – But still, the respondent has not come forward for

(338)
settlement with the accused – If the trial Court comes to the conclusion
that the accused is guilty, then it is open to the learned
Judicial Magistrate to take into consideration about the payment made
by the accused and also take into consideration the other factors and to
show leniency while sentencing the accused – Even the learned Judicial
Magistrate may apply the relevant provision under Section 3 of the
Probation of Offenders Act and admonish him, subject to Section 361 of
Cr.P.C. Probation of Offenders Act , Secton 3-See Negotiable Instruments
Act, Section 147 (Amendments introduced with effect from 6.2.2003
making the offence as compoundable offence).
Criminal P.C., Section 361/Compunding of offence – See Negotiable
Instruments Act, Section 147 (Amendments introduced with effect from
6.2.2003 making the offence as compoundable offence), Probation of
Offenders Act, Section 3.

Held:
As per the petition filed by the accused, the learned counsel for the
respondent received demand draft and acknowledged it on the advise of
the learned Magistrate. Therefore, it is made clear, though the
complainant had been willing to compromise the matter, at a later stage
had changed his mind after receiving a sum of Rs. 4.5 lakhs out of the
cheque amount of Rs. 50 lakhs. The remaining amount of Rs. 50,000/-
also was received as demand draft. The complainant is not denying the
receipt of the amount of Rs. 5 lakhs which is the total cheque amount.
But, the complainant is not coming forward either to withdraw the
complainant or to compound the offence against he accused.

(339)
8.6 Overview of Another High Court’s Case Law

Case law
In Sunna V. State4, the accused aged twenty years was found
guilty of an offence under Section 380, I.P.C. for committing theft of a
bicycle and some clothes. The Court ordered his release after admonition
under Section 3 of the Probation of Offenders Act, 1958 because there
was no previous conviction of the accused and the theft was committed
due to sudden temptation without any premeditation.
In yet another case of Kehar Singh v. Regional Employment
Officer, Chandigarh5, the petitioner was convicted for the offence of
Section 380, I.P.C. and was dealt with under Section 4 of the Probation
of Offenders Act, 1958. He was removed from service consequent to the
decision of the Court. On appeal, he was reinstated on the ground that a
person released on probation suffers no disqualification attaching to his
conviction as provided under Section 12 of the Act.
Again, in case of Sanchu roy v. State of Asam6, where the
accused was about 19/20 years of age and had no previous criminal
antecedents was sentenced to one year R.I. Keeping in view the fact that
the accused was a tender age and the offence was committed ten years
ago, the Supreme Court directed him to be released on probation of good
conduct with a bond of Rs. 1000/- with one surety of like amount.
In the case of State of Karnataka v. M. Chandrappa7 and
another, the State filed an appeal against the order passed by the High
Court for release of the accused on probation. The Supreme Court
dismissed the appeal and observed that it was a fit case where accused
could be released on admonition with direction that conviction would not

4
AIR, 1967, Orissa, 4.
5
AIR, 1966, Punjab, 336.
6
(1987), Cr.L.J. 1378.
7
(1987), Cr.L.J. 950.

(340)
be a disqualification for holding post an continuance of service. In this
case, the accused assaulted a constable who was waiting for a bus that
would reach him to Police Station. He was found guilty of Sections 352
and 353, I.P.C. The accused was a teacher who had come to know that
there was some enquiry against him and this constable had enquired
about him. Hence seeing the constable, he abused him and assaulted
him under mental pressure. The Supreme Court held that the constable
could not be said to be engaged in executing his duty at the time of
incident and hence the accused was allowed the benefit of Section 3 of
the Probation of Offenders Act. The Apex Court has expressed a similar
view in its earlier decision in Rajbir v. State of Haryana8.
In Sunil Kumar Parida v. State of Orissa9, the Supreme Court
ordered the release of the accused who had undergone a part of his
imprisonment, giving him benefit of Section 3 and 4 of the Probation of
Offenders Act so that he could get the benefit of Section 12 of the Act and
may not be adversely affected by the disqualification attached with
conviction and imprisonment. The Court directed the accused to appear
before the Sub-Divisional Magistrate of Neelgirima and receive the
probation order within six weeks.

8.7 Overview of High Court of Madhya Pradesh


In the case of Gudda v. State of Madhya Pradesh10, the appellant
caused nineteen injuries to the complainant and was convicted under
Section 323, I.P.C. and sentenced to R.I. for one month and a fine of Rs.
500/-. In default of payment of fine, he was to undergo two months'
further R.I.In appeal against this conviction, the High Corut of Madhya
Pradesh held that it was not known to the Court as to who had caused
extra injuries, whether it was the appellant or the absconding accused

8
AIR, 1985, SC, 1278 (SC).
9
(1993) Cr.L.J. 544 (SC).
10
2000(1) Cr.L.J. 161(MP) )C.Cr.J. stands for Current Criminal Judgments).

(341)
named Vakeel. That apart, there was no dispute that the appellant was a
first offender and there was not previous criminal record against him. He
was, therefore, entitled to the benefit of Section 3 or 4 and 5 of the Act:
He would, however, pay the sum of Rs. 5000/- as compensation to the
victim who suffered as many as nineteen simple injuries.
The High Court of Madhya Pradesh held in the case of Raju v.
State of Madhya Pradesh11 that the benefit of first offender may be
available to an accused who caused simple hurt to the complainant
without any dispute and was convicted for an offence under Section 323,
I.P.C. because award of sentence is not mandatory for an offence under
this section and it may be punishable only with payment of fine. Thus
taking into consideration the totality of the circumstances, the Court
held that the accused persons who are rustic villagers deserve to be left-
off on payment of fine without extending the benefit of Section 3, 4 or 6
of the Probation Act.
In the case of Siya Saran v. State of Madhya Pradesh12, the
accused who was dissatisfied by the medical treatment given to his
brother in the Government Hospital by the Assistant Surgeon, first
insinuated the doctor about the improper manner of treatment meted out
to his brother and then gave him a fist blow on his face with the result
that a tooth of doctor was dislocated and his lip was cut. The appellant
was tried and found guilty of offences under Sections 33 and 506 Part II
of the Indian Penal Code and was sentenced to three years' and two
years' rigorous imprisonment respectively for the aforesaid offences. His
appeal to High Court was dismissed and, therefore, he appealed to the
Supreme Court.
In the case of Gulzar v. State of M.P.13 accused was convicted
for theft under Section 379, I.P.C. as he stole an attache containing cash

11
1999(2)C.Cr. J. 645(MP).
12
(1995) Cr.L.J. 2126(SC).
13
AIR 2008 SC 383.

(342)
from the bus in which the complainant was travelling on 25th December,
1992. The prosecution witnesses identified the attache and the cash
money of Rs. 55,000 was recovered from the possession of the accused.
He was, therefore, convicted and sentenced to undergo R.I. for three
years. Counsel for the appellant submitted that the appellant was
entitled to benefit of release on probation under Section 3 and 4 of the
Probation of Offenders Act or Section 360 of Cr.P.C. but the Courts below
the consideration of the material on record maintained the sentence and
declined to grant probation to the accused. While disposing of the appeal
filed by the appellant. The Supreme Court observed:
"Section 360 of Cr.P.C. relates to person not under 21 years of age
convicted for an offence punishable with fine only or with imprisonment
for a term of 7 years or less, to any person under 21 years of age or any
woman convicted of an offence not punishable with sentence of death or
imprisonment for life. The scope of Section 4 of Probation of Offenders
Act is much wider. It applies to any person found guilty of having
committed an offence which is not punishable with death or life
imprisonment.
Section 360, Cr.P.C. does not provide for any role for Probation
Officers in assisting the Courts in relation to supervision and other
matters while in Probation of Offenders Act does make such a provision."
The two statutes with such significant differences could not be
intended to co-exist at the same time in the same area as such a co-
existence would lead to anomolous results. Further, by virtue of Section
8(1) of the General Clauses Act, it is clear that where the provisions of
the Probation of Offenders Act, 1958 have been brought into force, the
provisions of Section 360 of Cr.P.C. would be wholly inapplicable.
In Gudda v. State of Madhya Pradesh14, the appellant caused 19
injuries to the complainant and was convicted under Section, I.P.C. and

14
2000(1) C.Cr.J. 161(M.P.) - (C.Cr.J. stands for Current Criminal Judgment).

(343)
sentenced to R.I., for one month and a fine of Rs. 500/- and to undergo
two months' R.I. in default of payment of fine. On appeal, the High Court
ordered the release of the appellant under Section 3 or 4 of the Probation
of Offenders Act and directed that he should pay a compensation of Rs.
5000/- to the victim who suffered as many as nineteen injuries.
Likewise, in the case of Raju and others v. State of Madhya
Pradesh, the appellants15 were convicted under Section 323, I.P.C. for
causing simple hurt to the complainant. The High Court in appeal
allowed the benefit of release on probation to the appellants on the
ground that award of sentence is not mandatory for an offence under
Section 323, I.P.C. and it may be punishable only with fine. Moreover,
the appellants being first-offenders and totality of circumstances of the
case demanded that they be let-off on payment of fine of Rs. 1000/- each
without extending the benefit of probation under Section 3 or 4 or 6 of
the Act. The Court further ordered that out of the fine so recovered, an
amount of Rs. 3000/- be paid to the complainant as a compensation for
the injuries suffered by him.

Case in which the offenders was allowed the benefit of release on


probation
In a criminal appeal, i.e., Raju Singh v. State of Madhya
Pradesh16, the appellants were convicted under Section 325/34 and 148,
I.P.C. the criminal act having been committed long back in 1985. There
was no previous conviction against the appellants and they had already
been in jail for one month. The High Court took the view that long
pendency of the case and harassment caused to the appellants for over a
decade, and the sentence award to them, justified leniency and they
deserve to be enlarged under Section 4 of the Probation of Offenders Act
on probation on execution of a bond of good conduct of Rs. 3000/- each

15
1999 (2) C.Cr.J. 645 (M.P.).
16
1995(2) Crime 700.

(344)
with two sureties in the like amount for a period of one year. The
appellants were, therefore, directed to appear before the ACJM,
Bementra on 30th March, 1995 to execute the bond.
The High Court of Rajasthan in the case of Rajoo v. State17,
allowed the benefit of release on probation to two accused convicted for
offences under Section 323 of I.P.C.
In State of Maharashtra v. Ramji Ramchandra Rokade18 and
another, three accused found guilty of offences under Section 353, I.P.C.
were admitted to the benefit of release on probation by the High Court of
Bombay. The accused, a cook employed in a Rest House, alongwith his
two sons assaulted a labourer who they alleged had spoiled the drinking
water. While the quarrel was going on, the complainant, a constable on
duty came there and intervened. According to the complainant, the three
accused gave him blows and abuses, while the version of the accused
was that the complainant interviewed and gave them blows. The accused
were convicted under Section 353, I.P.C., but were allowed the benefit of
probation because they had no previous conviction against them.
The Supreme Court in Prakash v. State of Madhya Pradesh19,
ordered the release of accused who was found guilty and convicted for an
offence under Section 324, I.P.C. on probation of good conduct keeping
in view that nature of his offence, the circumstances and antecedents of
the offender. In this case, the accused was an employee of the
Municipality, was a first offender and his offence was not premeditated
and the injury caused to the victim was not grave or serious. The
Supreme Court held that these grounds were sufficient to entitle the
accused to be released on probation.

17
1977 Cr.L.J. 837 (Raj.).
18
1976 Cr.L.J. 379 (Bom.).
19
1993 Cr.L.J. 119 (SC).

(345)
In Mohd Monir Alam v. State of Bihar20, a dispute arose between
the appellants and the injured person on 26th Feb., 1992 during
demarcation of the land between the deceased Imtiaz Ali and Manjoor
Alam, the uncle of the appellant, was being conducted by the Revenue
Amin. During the quarrel manjoor Ali, Kamuruddin, Monir Alam and
several others caught hold of Imtiaz and assaulted him with lathi. Imtiaz
fell on the ground whereafter Manjoor and Monir Alim again assaulted
him and when Md. Tufel, Fatma Khatoon and Ajmeri Nisa came to
intervene in favour of Imtiaz, they were also assaulted. Imtiaz and other
injured persons were carried to Barauti Hospital from where Imtiaz was
referred to Gopalganj and yet further to Patna where he succumbed to
injuries. Police Harilal was present at the scene of quarrel. A cross-case
was registered against the other set of accused. The trial Court acquitted
all the accused on the charge of murder but convicted them under
Section 304, Part II and 323 I.P.C. and sentenced to various terms of
imprisonment.
In R.B. Syed v. State21, the Supreme Court held that when the
accused is already on probation he can be allowed the benefit Section
4(2) of the Probation of Offender's Act, 1958, even now when he has
crossed the age limit of 21 years of age.
The Apex court in the case of State of Gujrat v. P.A. Chouhan22,
observed that the provisions of Section 4 of the Probation of Offenders
Act are not available to a convict who is sentenced to life imprisonment,
but when due to High Court's decision, the accused is already on
probation for the last six years, the Supreme Court would not like to
interfere in the matter.

20
A.I.R. 2010 (SC) 698.
21
1983 All India Cr.L.R. 3(SC).
22
A.I.R. 1983 SC 359.

(346)
In yet another case, namely Municipal Corporation Delhi v.
Rattanlal23, the respondent, on a complaint from the Municipal
Corporation, Delhi, was charged under Section 7 of the Prevention of
Food Adulteration Act, 1954, for selling adulterated cream-biscuits and
was convicted by the trial Court for six months and a fine of Rs. 1000/-
or four months' simple imprisonment in default. On appeal, the ADJ
upheld the sentence. The Municipal Corporation field a revision to the
High Court for enhancement of the sentence of the respondent keeping in
view the gravity of the offence of adulteration. The respondent pleaded
the benefit of Section 4 of the Probation of Offenders Act. Allowing the
benefit of probation to the accused, the Supreme Court observed that
there was no legal bar to release offenders convicted for food adulteration
on probation under the Act.
Again, in Vishnu Moorthi v. State of Mysore24, the Court held
that even in an offence of smuggling which is an anti-social activity
affecting the economy of the State, the offender can be released on
probation of good conduct if there are special circumstances to believe
that he has potentialities for reformation.
In Rahmatullah v. State, the High Court of Karnataka25 ordered
to release of the appellant on probation of good conduct under Section 4
of the Probation of Offenders Act, despite the fact that minimum
sentence of three months R.I. and a fine not less than rupees on hundred
was prescribed by the Karnataka Excise Act for an offence under Section
32 of that Act.
In the historic decision, namely, Ishwar Das v. State of Punjab26,
though the Supreme Court allowed the benefit of probation to an
adulterator, but leaving a note of caution the Court observed that
adulteration of food is a menace to public health an anti-social activity.
23
1971 (Cr.L.J.) 1485 (SC).
24
1971 Mys.L.J. 451.
25
1978 Cr.L.J. 109 (Kant).
26
A.I.R. 1972 (SC) 1295.

(347)
Therefore, the Court should not lightly resort to the provisions of the
Probation of Offenders Act in case of persons about 21 years of age who
are found guilty of offences under the prevention of Food Adulteration
Act, 1954.
The Supreme Court in Commandant 20th Bn. (ITBF) v. Sanjay
Vinjoa27, held that the offence under Section 10 of Central Reserve Police
Force Act, 1947 being of an ordinary nature the accused may be allowed
the benefit of release on probation for this offence.
In A.P. Raju v. State of Orissa28, the Supreme Court held that
where the accused was acquitted by the Trial Court for the offence of
negligent driving but convicted by High Court, and at present released on
bail for the last eight years, he may be granted benefit of release on
probation under Section 4 of the Probation of Offenders Act, on execution
of a bond for maintaining good behaviour and peace.
In Ladu Lal v. State of Rajasthan29, the accused was convicted
for voluntarily causing hurt to deter public servant for his duty under
Section 332, I.P.C. The incident has occurred twenty one years ago and
since then the accused were facing trial. The High Court of Rajasthan
found it a fit case to release the accused on probation on furnishing a
bond of Rs. 1000/-.
In the case of Satyanarayan v. State of Madhya Pradesh30, the
accused was found guilty of rash and negligent driving and causing
death by negligence (Section 304-A, I.P.C.). The accused (petitioner) was
a teacher by profession and was on the verge of retirement and the whole
family was entirely dependent on his sole earnings. If the conviction and
sentence of the accused were maintained, he would have been
terminated from service, which would have affected on his pensionary
benefits. The High Court of Madhya Pradesh observed that looking to the
27
A.I.R. 2001 (SC) 58.
28
1996(1) All India Cr.L.R. (SC) 452.
29
2003 Cri.L.J. NOC 78 (Raj).
30
2003 Cri LJ NOC 178 (M.P. Indore Bench).

(348)
special feature of the case that petitioner was a first offender, there was
no contrary report against him during his period of incarceration about
his conduct and the legal representatives of the deceased victims having
been paid substantial amount of compensation, the accused (petitioner)
could be granted the benefit of Section 4 and released on probation on
execution of bond.
Case in which the Benefit of Probation was defined to the offender:
In Ranjit Singh v. The State, the High court of Patna31 awarded
a sentence of six months' simple imprisonment and a fine of Rs. 1000/-
to the accused for the offence of forgery under Sections 467, 468, 471
and 420, I.P.C. Denying the benefit of release on probation to the
accused the Court observed that the case deserved no compassion
keeping in view the nature and gravity of the offence and the standing of
accused as an Advocate having a lucrative practice.
In Uttam Singh v. Delhi Administration32, the appellant was
convicted under Section 292, I.P.C. for being in possession of three
packets of playing cards and some obscene photographs. He was
sentenced to 6 months' R.I. and a fine of Rs. 500/-. The Supreme Court
refused to allow him the benefit of release on probation having regard to
his age of 36 years and the circumstances and the nature of his offence.
The Supreme Court in Somnath Puri v. State of Rajasthan33,
dismissed the appeal and held that the benefit of probation law cannot
be invoked in case of offence of fraudulent misappropriation falling under
Section 409, I.P.C. and Section 5(2) of the Prevention of Corruption Act,
1947, hence the High Court was right in maintaining the sentence of
appellant passed by the trial Court.

31
A.I.R. 1963 Patna 262.
32
(1977) 1 SCC 103.
33
A.I.R. 1972 SC 1490.

(349)
In the case of Rajender Dutt v. State of Haryana34, the accused,
a subordinate employee was found guilty of causing grievous hurt to his
superior officer and convicted under Sections 334 and 353 of I.P.C. He
has assaulted the said official due to erroneous belief that he was
instrumental in getting the accused transferred elsewhere. The Supreme
Court refused to interfere with the sentence and declined to allow the
benefit of probation to the accused as his act was premeditated and
could not be said to have been committed in excitement or under
emotional distress.
In Piyarey Lal v. State, the High Court of Allahabad35
emphasised that the Courts should not lightly resort to the provisions of
the Probation of Offenders Act, particularly in case of offenders who are
about 21 years of age. The sale of adulterated articles of food have
injurious effect on public health and, therefore, should be sternly death
with. In the instant case the accused Piyarey Lal was found guilty of the
offence under Section 7 read with Section 16 of the Prevention of Food
Adulteration Act, 1954. He was selling Kampats (a variety of sweets)
which were coloured red, yellow, orange and white by coaltar dye
containing rhodamine. The argument of the accused that he was not the
manufacturer of the said sweets and hence did not know about the
impurity was not accepted by the Court. Dismissing the revision, the
Court enhanced the sentence to six months with a fine of Rs. 1000/- and
in default to further suffer rigorous imprisonment for six months.
In M/s. Precious Oil Corporation & others v. State of Assam36,
the conviction of the appellants was upheld by the Single Judge of the
Gauhati High Court for offence punishable under Section 7(1)(a)(i) of the
Essential Commodities Act, 1955. The allegation was that the appellant
had violated Clause 3 of the Lubricating Oils and Greases (Processing,
34
(1993) Cr.L.J. 1025 (SC).
35
1977 Cr.L.J. 1034 (1036) (All).
36
A.I.R. 2009 SC 1566. The decision in Ishar Das v. State of Punjab, AIR 1972 SC 1295 is an authority on this
point.

(350)
Supply & Distribution) Regulation Order 1987. He was awarded simple
imprisonment of one month and fine of Rs. 3000/- each with default
stipulation. The accused had failed to obtain proper license as required
under the said Control Order and also failed to produce proper books
and account etc.
The Supreme Court refused to grant benefit of probation to cases
involving smuggling activities. Thus in State of Maharashtra v. Natwar
Lal37, the Apex Court refused to extend the benefit of Probation of
Offenders Act to a person convicted for smuggling under Section 135(1)
and (2) of the Customs Act, 1952 because smuggling of gold not only
affects public revenue and national economy but it is a menace to
society.
In Krishna Chandra v. Harbans Singh38, the accused, an
educated young man was found guilty of having committed house-
trespass in his negibhour's house and raped the neighbour's wife. The
Court held that the offender cannot be admitted to the benefit of
probation in view of the depravity of the offender despite the fact that the
victim and her husband had shown willingness to pardon the accused.
In Dalbir Singh v. State of Haryana39, The Supreme Court held
that the accused who caused death of a person due to rash and negligent
driving deserved no sympathy and, therefore, could not be allowed the
benefit of being released on probation under the Probation of Offenders
Act, 1958.
In State of Kerala v. K. Farid40, the accused was found guilty of
rash and negligent driving and convicted under Section 304-A, I.P.C. The
High Court of Karnataka held that since the accused was found guilty
and convicted for the said offence, hence Section 4 of the Probation of
Offenders Act could not be made applicable hi his case.
37
A.I.R. 1980 SC 593.
38
(1967) Raj LW 101.
39
A.I.R. 2000 SC 1677.
40
2005 Cri. L.J. 2993 (Kant).

(351)
The High Court of Delhi in Suresh v. State41, has held that
denial of benefit of release on probation without giving reasons is
improper and such an order is liable to be quashed.
In the case of State of Karnataka v. Erappa Kurugodeppa42, the
High Court held that they were convicted and sentenced with fine for the
offence punishable under Section 143 and 323 read with Section 149,
I.P.C., extending then benefit of release on probation under Section 4 of
the Probation of Offenders Act was illegal and, therefore, liable to be set
aside.
In Abdul Qayum v. State of Bihar43, the appellant aged 16 years
pick-pocketed Rs. 36/-. Despite Probation Officer's favourable report for
release on probation under Sections 4 and 6 of the Act, he was sentenced
to six months' rigorous imprisonment by the trial Court because of his
association with seasoned pick-pockets. On appeal, The Supreme Court
directed the trial Court to placed him on probation.
In the case of Kamaroonissa v. State of Maharshtra44, the
Supreme Court confirmed the sentence of accused, a girl below 21 years
of age who was convicted for theft denying her benefit of Section 6 of the
Probation of Offenders Act as she was a hardened criminal having
adopted thefts in running trains as per profession. Similar view was
taken by the Court in Prem Ballabh v. State45.
Again, in Jawahar v. State of West Bengal46, the appellant was
guilty and convicted for the offence of lurking house trespass with
intention to commit theft under Section 454, I.P.C. because he entered
the watch repairing shop and was caught stealing red-handed by the
informant with the help of some witnesses. The appellant was little less

41
1995 Cri.L.J. 3741 (Del.).
42
2000 CRi.L.J. 2163 (Kant).
43
A.I.R. 1972 SC 21.
44
A.I.R. 1968 Goa.
45
A.I.R. 1977 SC 56.
46
1995(2) Crimes 740 decided on 19.12-1994.

(352)
than 18 years at the time of occurrence (i.e., 4-9-1991) and there was no
adverse previous record against him.
In the case of Sanchu Ray v. State of Assam47, the accused was
about 19/20 years of age and had no previous criminal antecedents. He
was sentenced to one years' rigorous imprisonment by the trial Court.
Keeping in view the tender age of the accused and the offence having
been committed ten years ago, the Supreme Court deemed it a fit case for
the benefit of Section 6 of the Probation of Offenders Act and directed
him release on probation of good conduct with a bond of Rs. 1000/- with
one surety of like amount.
In Shankar Dass v. Union of India48, the Supreme Court took a
liberal view of the provision of Section 12 of the Probation of Offenders
Act and ordered the appellant to be reinstated in service. In this case, the
appellant had misappropriated Rs. 500/- from Delhi Milk Service and
thus committed the offence under Section 409, I.P.C. He pleaded guilty
and was therefore convicted by the Court but allowed the benefit of
released on probation under Section 4 of the Act. As a result of his
conviction, he was dismissed from service in April 1964. The Supreme
Court while deciding the appeal observed that in the instant case the
offence was committed under persona misery compounded by the
appalling law's delay. The Court further observed that a government
servant convicted on a criminal charge and released on probation cannot
be said to be liable to be dismissed in view of Section 12 of the Probation
of Offenders Act, which is a beneficial legislation. The Court, therefore,
set aside the order of the Delhi High Court and reinstated the appellant
in service.
In Trikha Ram v. V.K. Seth49, the Supreme Court reiterated that
an offender convicted for a criminal offence and released on probation

47
1987 Cr.L.J. 1378 (SC).
48
A.I.R. 1985 (SC) 772.
49
A.I.R. 1988 (SC) 285.

(353)
cannot be dismissed by the disciplinary authority in view of the
provisions contained in Section 12 of the Probation of Offenders Act as it
will operate as a disqualification for future employment. Hence the
dismissal of the accused was converted into removal from service.
However, in Union of India v. Bakshi Ram50, The Supreme Court
observed that release of offender on probation does not obliterate stigma
of conviction. In the instant case, the accused was dismissed from
service in view of his conviction under Section 10 of the Central Reserve
Police Force Act and the Court held that he was not entitled to
reinstatement in service upon getting the benefit of release of probation
of good conduct under Section 4 of the Probation of Offenders Act.
In Sunil Kumar Prida v. State of Orissa, the Apex51 Court
ordered the release of the accused who had undergone a part of his
imprisonment, giving him benefit of Section 3 the Act and may not be
adversely affected by the disqualification attached with imprisonment.
The Court directed the accused to appear before the Sub-Divisional
Magistrate of Neelagirima and receive the probation order within six
weeks.
In the case of Harish Chand v. Director, Education Deptt.52, the
Supreme Court reiterated that where a public servant is convicted for
any offence under the Indian Penal Code, he may be removed from
service on the basis of his conviction for the offence despite his being
released on probation under Section 4 of the Probation of Offenders Act.
The reason being that Section 12 of the Act obliterates the
disqualification of the public servant attaching to his conviction but it
does not confer him immunity from departmental proceedings against
him.

50
1990 Cr.L.J. 103(SC).
51
1993 Cr.L.J. 544(SC).
52
A.I.R. 1998 SC 788.

(354)
The High Court of Allahabad in Mahak Singh v. State of Uttar
Pradesh53, observed that where the petitioner has been released on
probation under the Probation of Offenders Act, 1958, five years before
elections to the State Assembly, he shall not be disqualified from
contesting the election in view of the provision contained in Section 12 of
the Act.
In Shivnath Ram v. State of Bihar, the High Court of Patna54
held that dismissal from service based on conviction, in criminal case is
not a 'disqualification' within the meaning of Section 12 of the Probation
of Offenders Act, 1958.

8.8 Summary
Like probation, parole is also a reformative technique adopted for
rehabilitation of prisoners. Though apparently the two terms appear to
be similar but between there is basic difference between the two, which
are as follows:
• Probation is a judicial function whereas parole is a quasi-judicial
function. In other words it is for hte Judicial Magistrate/Judge to
release the offender on probation whereas the decision as to
release of a person is taken by the Parole Board which is not a
judicial body.
• There is no stigma or disqualification attached to a person released
on probation but parole carries stigma or disqualification of being
a convicted person.
• Probation is a pre-conviction process whereas parole is a post-
conviction technique.

53
A.I.R. 1999 All 274.
54
1995 Cri.L.J. 3522 (Pat.).

(355)
• A probationer is considered as if undergoing a 'reformatory
treatment' but a parole is considered to be in custody undergoing
both treatment and punishment.
• Probation is merely suspension of sentence and is granted as a
substitute for punishment whereas parole is granted to prisoner
who are already undergoing imprisonment if they show propensity
for good behaviour.
• As pointed out by J.L. gillin, probation is the first stage of
corectional scheme, the parole being the last stage of it.
• Historically also parole came into existence must later than that of
probation. The system of probation was originated by John,
Augustus around 1841 whereas parole came into existence
somewhere in 1940s.
It is proposed to empower Courts to release an offender after
admonition in respect of certain specified offences. It is also proposed to
empower Courts to release on probation, in all suitable cases, an
offender found guilty of having committed an offence not punishable with
death or imprisonment for life. In respect of offenders under 21 years of
age, special provision has made putting restrictions on their
imprisonment. During the period of probation, offenders will remain
under the supervision of probation officers in order that they may be
reformed and become useful members of society.

(356)