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1999 Supreme(Del) 329
High Court Of Delhi
H.P.VAID - Appellant
Versus
PARVEEN SONI - Respondent
Criminal Miscellaneous (Main) 3132 of 1992
Decided On : 05/01/1999
Anup K.Sinha
Headnote:Criminal Procedure Code, 1973 - Section 360 — Probation — Procedure — Beneficial provision applicable on women — Calling of report of probation officer is not necessary.
Held:
Section 360 of the Code of Crl. Procedure provides that if any woman is convicted of an offence not punishable with death or imprisonment for life and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character and antecedents of the offender and to the circumstances in which the offence is committed, that it is expedient that the offender should be released on probation on the good conduct the Court may instead of sentencing him to any punishment, direct that she be released on probation of good conduct on her entering into a bond, with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the Court may direct and in the meantime to keep the peace and be of good behaviour. Section 360 is of universal application and specifically covers the case of a lady who is convicted of any offence not punishable with death or imprisonment for life. It also does not prescribe requirement of considering any report of probation officer.
In so far as grant of probation is concerned, it neither relates to treatment nor to training or rehabiitation of youthful offenders for, the present cast relates to a woman. Since it is a beneficial provision for women, it appears difficult to accept that provisions of the Act would be applicable in the case of a woman offender covered by the provisions of Section 360 of the Cr.PC. To the said extent, the Probation of Offenders Act stands eclipsed.
If same order could be passed under Section 360 of the Code of Criminal Procedure without calling a report of Probation Officer, reference to a wrong provision is immaterial. Consequently, it is difficult to accept the submission of the petitioner that there was miscarriage of justice for, the accused was released under Section 4 of the Act.
Probation of Offenders Act, 1958 - Section 4 — Compliance of — Release of convict without report of probation officer is not justified.
The report of the probation officer must invariably be called before releasing any accused on probation under Section 4 of the Probation of Offenders Act. for clearly there is no source of collecting necessary infonnation required under Section 3 or 4 of the Act. Such a report would certainly help in assessing the antecedents, the family background, commission of similar crime(s) earlier and the expediency of releasing on probation. The expediency of releasing the accused, can be decided only on perusal of the report of the Probation Officer for want of any other source of information. This Court is not oblivious to the time which is spent in obtaining report and difficulties faced in obtaining such reports especially in absence or non-availability of the Probation Officer in cases of the accused who have migrated to Delhi and there is no agency to submit requisite report or when they do not submit report. As far as possible, the report of the Probation Officer should be insisted upon Chief Probation Officer, Delhi also must ensure that the Probation Officers are made readily available and give a report within a week by making an appropriate arrangement.
Section 11, 14, 15 & 16 — Probation — Entitlement of — Complainant has no locus standi and he is not entitled to challenge the order granting probation.
( 1 ) IN this petition following two questions arise for consideration:
1. Whether the complainant, being an aggrieved persons could file the present petition under Article 227?
2. Whether in absence of the report of the probation officer as required under the proviso to sub-section (2) of Section 4, the respondent could be released on probation by the learned MM?
( 2 ) FIRST the facts in brief. Mrs. Praveen Soni/respondent claimed herself to be the tenant of premises No. A-2/37, Krishan Nagar, Delhi under the petitioner Mr. H. P. Vaid at a monthly rent of RS.-IOOO. 00 excluding water and electricity charges since 1984. Though the petitioner had obtained signatures on various documents of Praveen Soni and her husband, the petitioner was not issuing rent receipts. The respondent sent advance rent for the month of September, 1985 through money order which was duly acknowledged but as rent up to 30th April, 1995 by Mr. Vaid in his own writing. She filed a suit for permanent injunction. The petitioner H. P. Vaid contested the suit, for according to him, the premises were entrusted to the respondent Parveen Soni as Principal of the said college on 16. 2. 1994. The relations between the parties were of master and servant and not of landlord and tenant. The petitioner also claimed in his reply that the money order, which was sent, related to payment of dishonoured cheque of Rs. 5,000. 00 issued on 30. 4. 1995. Initially the injunction was granted by the learned Sr. Sub Judge. Subsequently, the petitioner moved application under Section 340 Criminal Procedure Code. before the learned Sr. Sub Judge claiming that the money order filed by the respondent Praveen Soni was forged and prayed that a complaint should be lodged. The learned Sr. Sub Judge accepted the prayer in the application. However, it also appears that during the pendency of the proceedings, after taking some amount the petitioner accepted the respondent as tenant and issued receipts. According to Parveen Soni, the petitioner has abused the process of the Court by getting different orders of the Court published in different newspapers and pasting them outside the court room, school and her residence.
( 3 ) THE learned M. M. convicted the accused Parveen Soni under Section 193/196/209/210/471/511 Indian Penal Code and holding that the respondent being a lady and principal of the College having clean antecedents and having a major and minor children released the petitioner Parveen Soni by granting benefit of probation of Offenders Act (hereinafter called the Act for short ). She filed an appeal against her conviction but the same was dismissed.
( 4 ) THE petitioner who was the defendant in that civil suit filed a revision for, the grievance that learned M. M. was not justified in giving Praveen Soni benefit of the Act, considering the nature and circumstances of the case. Revision petition was dismissed on 22nd April 1992 by the learned Additional Sessions Judge on the grounds that the petitioner had no locus standi, that only an appeal would lie and revision application would not lie and that revision petition was misconceived.
( 5 ) FEELING aggrieved the petitioner has filed this petition before this Court inter alia on the ground that the order to release the accused on probation should have been set aside and the respondent should have been suitably punished by sentencing her to imprisonment for appropriate term and to pay appropriate fine. The Addl. Sessions Judge failed to consider illegality of granting the prayer of release on probation in violation of sub-Section (2) of Section 4 the Act without calling the report of the Probation Officer. Consequently, the order should have been set aside. The present petition has been moved as public interest litigation for curbing perjury.
( 6 ) I have heard petitioner as well as the learned counsel for the respondent and gone through the record.
( 7 ) A preliminary objection has been raised by the learned counsel f
