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High Court Of Calcutta
Sidheswar Narayan
JAWAHAR - Appellant
Versus
STATE - Respondent
CRI. REV. 5 Of 1994
Decided On : 12/19/1994
Probation of Offenders Act - Section 6 - Interpretation and Application - Benefit of Probation Denied to Offender Below 21 Years - Validity - Concurrent Finding of Guilt Under Section 454 IPC Upheld.
Fact of the Case:
The petitioner, aged 20 years at the time of the offense, was convicted under Section 454 IPC for stealthily entering a watch-repairing shop with the intent to commit theft. The trial court and appellate court upheld the conviction, but the petitioner challenged the sentence, arguing that he should have been granted the benefit of the Probation of Offenders Act and Section 360 of the CrPC.
Finding of the Court:
The High Court found that the trial court erred in denying the petitioner the benefit of the Probation of Offenders Act and Section 360 of the CrPC. The court noted that the petitioner was a first-time offender with no adverse character report, and that the offense was committed in the light of day without any actual theft taking place.
Issues: 1. Whether the petitioner was entitled to the benefit of the Probation of Offenders Act and Section 360 of the CrPC, despite his conviction under Section 454 IPC. 2. Whether the trial court's reasons for denying the petitioner the benefit of probation were valid and reasonable.
Ratio Decidendi: The High Court held that the trial court's sole reason for denying the petitioner the benefit of probation, namely, that he dared to enter the shop under lock and key, was not a valid and reasonable ground. The court noted that the petitioner was young, the offense was not serious, and there was no adverse character report against him.
Final Decision: The High Court modified the sentence imposed on the petitioner, suspending the rigorous imprisonment for one year and directing his release on a bond of Rs. 3000/- with two sureties. The petitioner was required to keep the peace and be of good behavior for a period of two years, and the Probation Officer was directed to keep supervision over him and submit half-yearly reports to the trial court.
( 1 ) - This petition in revision is directed against the judgment and order dated 28th October, 1994 passed by Shri S. K. Ray, Sessions Judge, A and N Islands, Port Blair in Criminal Appeal No. 7 of 1994 whereby the Order of conviction and sentence passed by Shri S. K. Haldar, Judicial Magistrate First Class (II), at Port Blair in G. R. Case No. 1072 of 1991 was upheld. The petitioner, having been found guilty of the offence under section 454 IPC, has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- in default to undergo rigorous imprisonment for one month more.
( 2 ) THE prosecution case, put in a short compass, was that on 4. 9. 1991 at about 11 AM the informant, namely, S. K. Krishnan, while passing by the side of his rented accommodation, noticed that some portion of its door had been slightly opened. Thereupon, he could noticed the presence of the petitioner inside the said room. The petitioner was thereafter caught hold at the spot by the informant with the help of some other witnesses, and, thereupon, the petitioner disclosed his name as Jawahar. The petitioner was thereafter brought to the police station and was handed over to the police.
( 3 ) SINCE the guilt of the petitioner under section 454 IPC has been established by a concurrent finding of the fact by the trial court as well as the Appellate court, I find practically no scope for interference therein. Shri Hemraj Bahadur, the learned counsel appearing on behalf of the petitioner urged before me that even assuming the prosecution story to be true, no offence under section 454 IPC was made out by the prosecution on the facts as alleged. I, however, find myself unable to accept the contention inasmuch as, the learned appellate court while expressing agreement with the finding of the trial court has correctly observed that the petitioner had stealthily entered into the watch-repairing-shop-in-question with intent to commit theft. The room, where the petitioner was found and caught hold, was in joint occupation of the informant S. K. Krishnan and one Veeraswamy and the same was used as a watch repairing shop. The petitioner has been held guilt of having entered into the shop while managing to expand one of the jhaps of the door. The room was then closed by putting lock and key therein. The lock was of-course not break-opened but the petitioner is said to have entered into it through loose portion of the jhap after taking all precaution to conceal his entry therein. That being as such, I find no valid ground to interfere with the concurrent finding of the trial court and the appellate court while convicting the petitioner under section 454 IPC.
( 4 ) THERE was, of course, a pertinent question raised before me with regard to the order of sentence passed against the petitioner. The learned counsel appearing on behalf of the petitioner urged before me that the Petitioner has been deprived of the beneficent provision of law which was available to him under section 4 read with section 6 of the Probation of Offenders Act 1958 and section 360 of the Cr. P. C. In this context, I, however, find that the trial court did apply his mind whether the petitioner should be given advantage of Probation of Offenders Act and section 360 of the Cr. P. C. and, thereupon, taking re-course of section 361 of Cr. P. C. he has assigned some reason for having not done so. The relevant portion of the judgement and order of the trial court can be quoted as follow :"heard the accused on the point of sentence. The accused prays for mercy. I have already found that the accused entered into the watch repairing shop of Veeraswamy in his temporary absence from there. The accused is so dare to enter into the shop which was under lock and key. In view of the fact, I find that the accused should not be given the benefit of Probation of Offenders Act or under section 360 of the Cr. P. C. Considering the age of the accused as well as the age of
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