Important point
Where accused suppressed the previous conviction he would not be entitled to claim benefit of probation for having played fraud on Court.

Headnote:Probation of Offenders Act, 1958 —Section 4—Delhi Municipal Corporation Act, 1957—Sections 332 and 461 —Respondent No. 2 convicted under for having carried unauthorised construction in his plot—Trial Court considering gravity of offence that eleven shops on ground floor and eleven shops on 1st floor were constructed declined benefit of probation and awarded six months imprisonment with fine—Sessions Court upheld conviction and sentence in appeal—High Court in revision found that accused deserved benefit of probation and thus set aside the sentence—Appeal—Respondent was convicted for same offence in another case and did not disclose the fact in criminal revision before High Court—He would be guilty of playing fraud on Court and disentitled himself from getting any relief—There was no good reason for giving benefit of probation keeping in view the large scale irregularity and unauthorised constructions—Court was bound to call for a report which it failed though not bound by such report—Impugned judgment was liable to be set aside and matter remitted to High Court for fresh disposal.
       Held : In our view, there was no good reason for letting the respondent off by granting to him the said benefit of POB Act particularly, keeping in view the large scale irregularity and unauthorized constructions carried by the builders in Delhi despite strict direction of the Municipal authorities and despite of the Courts passing various orders from time to time against the unauthorized construction. The High Court also failed to take into consideration that the respondent has been in jail for three days and had not put in substantial period in custody. The High Court vide its order impugned in this appeal has observed that there is no allegation that the respondent is a previous convict. In fact, as could be seen from the annexures filed along with this appeal, the respondent has been convicted for offence under Sections 332 and 461 of the DMC Act. (Para 18)
       The respondent did not also disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another Criminal Case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. Thus, the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to approach the Court and he can be summarily thrown out at any stage of the litigation. In the instant case, non-production of the order and even non-mentioning of the conviction and sentence in the criminal Case No. 202 of 1997 tantamounts to playing fraud on the Court. A litigant who approaches the Court is bound to produce all documents which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well on the opposite party. The second respondent, in our opinion, was not justified in suppressing the material fact that he was convicted by the Magistrate on an earlier occasion. Since the second respondent deliberately suppressed the crucial and important fact, we disapprove strongly and particularly, the conduct of the second respondent and by reason of such conduct, the second respondent disentitled himself from getting any relief or assistance from this Court. We, however, part with this case with heavy heart expressing our strong disapproval of the conduct and behaviour but direct that the second respondent to pay a sum of Rs. 10,000/- by way of cost to the appellant herein. We have already reproduced Section 4 of the POB Act. It applied to all kinds of offenders whether under or above 21 years of age. This section is intended to attempt possible reformation of an offender instead of inflicting on him the normal punishment of his crime. The only limitation imposed by Section 6 is that in the first instance an offender under twenty one years of age, will not be sentenced to imprisonment. While extending benefit of this case, the discretion of the Court has to be exercised having regard to the circumstances in which the crime was committed, the age, character and antecedents of the offender. Such exercise of discretion needs a sense of responsibility. The offender can only be released on probation of good conduct under this section when the Court forms an opinion, having considered the circumstances of the case, the nature of the offence and the character of the offender, that in a particular case, the offender should be released on probation of good conduct. The section itself is clear that before applying the section, the Magistrate should carefully take into consideration the attendant circumstances. The second respondent is a previous convict as per the records placed before us. Such a previous convict cannot be released in view of Section 4 of the POB Act. The Court is bound to call for a report as per Section 4 of POB Act but the High Court has failed to do so although the Court is not bound by the report of the Probationer Officer but it must call for such a report before the case comes to its conclusion. The word “shall” in sub-section (2) of Section 4 is mandatory and the consideration of the report of the Probationer Officer is a condition precedent to the release of the accused as reported in the case of State vs. Naguesh G. Shet Govenkar and Anr., AIR 1970 Goa 49 and a release without such a report would, therefore, be illegal. (Paras 21 and 22)
       Since the High Court has disposed of the criminal revision without giving an opportunity of filing counter affidavit to the counsel for the MCD and that the respondent did not disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another criminal case No. 202 of 1997, the judgment impugned in this appeal cannot be allowed to stand. We, therefore, have no hesitation in setting aside the order impugned and remit the matter to the High Court for fresh disposal strictly in accordance with law. (Para 25)

Order

Leave granted.

2. Municipal Corporation of Delhi, aggrieved against the judgment and final order dated 26.03.2004 passed by the High Court Delhi in Criminal Revision Petition No. 185 of 2004 by which order the High Court gave the benefit of probation under Section 4 of the Probation of Offenders Act, 1958 (herein after referred to as “POB Act”) to the second respondent - Gurcharan Singh but maintained the conviction, preferred the above appeal.

3. The brief facts leading to the filing of the above appeal are as under:

One Mr. M.K. Verma (PW4), Junior Engineer, Civil Line Zone, visited 189 Prem Gali, Punja Sharif, Mori Gate where he found unauthorized construction going at the first floor of the said plot. F.I.R. was prepared on the report of Mr. M.K. Verma who forwarded the F.I.R. before Zonal Engineer, who ordered to issue notice under Section 343/344 of the Delhi Municipal Corporation Act, 1957 (for short the “DMC Act”). Subsequently, the second respondent along with Kuldeep Singh were prosecuted for commission of offences under Sections 332 and 461 of the DMC Act before the designated Municipal Court.

4. The trial Court, after the conclusion of the trial, convicted the second respondent under Sections 332 and 461 of the DMC Act and sentenced him to six months simple imprisonment and imposed a fine of Rs. 5000/- (Annexure P-1).

5. Aggrieved by that order, the second respondent-accused filed an appeal before the Sessions Court, Delhi. The said Court by an order and judgment dated 23.3.2004 dismissed the appeal by holding that there was no infirmity in the order passed by the trial Court (Annexure P-2).

6. Against the judgment and order dated 23.3.2004, the accused filed Criminal Revision Petition No. 185 of 2004 before the High Court Delhi. At the time of arguments, the advocate for the accused submitted before the High Court that the accused did not wish to challenge the conviction on merits and stated it a fit case of accused to be admitted to the benefit of POB Act on the ground that the accused faced trial for 12 years in the lower courts and remained in jail for three days.

7. The High Court vide its order dated 26.3.2004 held that the accused suffered the agony of trial lasting for 12 years. Besides that the has already undergone some period in custody. The High Court also observed that there is no allegation that the petitioner-accused is a previous convict and it further held that the accused deserved the benefit of probation under Section 4 of the POB Act and while maintaining the conviction of the respondent-accused, the sentence of imprisonment and fine as awarded to him was set aside.

8. The appellant, aggrieved by the judgment of the High Court, preferred the above appeal by way of special leave petition before this Court.

9. We have perused the entire pleadings, orders and judgments passed by the lower Courts and also of the High Court, the other annexures, in particular, annexures P-1 and P-2, and records annexed to this appeal and also heard the arguments of Mr. Ashwani Kumar, learned senior counsel appearing for the appellant, Mr. Vikas Sharma, learned counsel appearing for respondent No. 1 and Mr. Jaspal Singh, learned senior counsel, appearing for the second respondent.

10. Learned senior counsel appearing for the appellant submitted that the High Court, before extending the benefit of POB Act to the accused did not call for a report from the authorities to check upon the conduct of the accused-respondent as per Section 4(2) of the POB Act and that the appellant-MCD was also not given time to file their counter affidavit on the question of sentence. He further submitted that the High Court while passing the impugned order and judgment did not take into consideration that the accused-respondent had been convicted in another criminal case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. In the said case, the accused-respondent was convicted under Section 332/461 of the DMC Act

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2005 Supreme(SC) 752

Important pointWhere accused suppressed the previous conviction he would not be entitled to claim benefit of probation for having played fraud on Court.

Cases Referred (2)

Important point
Where accused suppressed the previous conviction he would not be entitled to claim benefit of probation for having played fraud on Court.