IMPORTANT POINT
Despite grant of probation the conviction remains.

JUDGMENT

Dr. B.S. CHAUHAN, J.

1. 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.

2. 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.

E. Aggrieved, the appellant challenged the said judgment and order dated 15.7.2011 before the High Court on various grounds including that the court below had committed an error in not taking into consideration the statement of the appellant under Section 164 Cr.P.C., wherein serious allegations had been made against the accused persons and others particularly that the appellant was kidnapped and illegally detained from 29.6.2009 to 4.7.2009; terrorising and threatening him that his hand and legs would be chopped of; abusing the complainant persistently. The case was disposed off hastily in one day without notice to the appellant. More so, the court below had no right to make the observation that the order of conviction would not adversely affect the services of the respondents-accused.

F. The High Court dismissed the said application vide order dated 23.4.2012 on the ground that the appellant has not challenged the order taking cognizance nor any objection was raised when charges were read over to the accused