Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Raj) 2241

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Pushpendra Singh Bhati, J.
Damaram @ Damodarlal – Appellant
Versus
State Of Rajasthan – Respondent
S.B. Criminal Appeal No. 409 of 1993
Decided On : 13-04-2022

Advocates appeared:
Mr. BS Rathore, for the Appellant
Mr. M.S. Bhati, PP, for the Respondent.

The central legal point established in the judgment is the application of the legislative intent of the Probation of Offenders Act, 1958 and the interpretation of Section 3 in light of previous court decisions.

Headnote:
COVID-19 - Criminal Appeal - Section 374 Cr.P.C. - Sections 2 of R.P.C.A Act & Section 3/25 of Arms Act - [Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Section 3 of the Probation of Offenders Act, 1958 and its interpretation in light of previous court decisions. The court also considered the nature of the offences under Sections 2 of R.P.C.A Act and Section 3/25 of Arms Act, and the absence of criminal antecedents of the accused-appellant. The court applied the legislative intent of the Act and the decisions rendered by the Hon'ble Apex Court in Dalbir Singh and Mohd. Hashim to extend the benefit of the Act of 1958 to the accused-appellant.]
Fact of the Case:

The case pertains to an incident in 1990, where the appellant was convicted for offences under Sections 2 of R.P.C.A Act & Section 3/25 of Arms Act. The appeal has been pending since 1993.
Finding of the Court:

The court observed that the accused-appellant deserves to be granted the benefit under Section 3 of the Probation of Offenders Act, 1958, considering the absence of criminal antecedents and the legislative intent of the Act. The court interfered with the sentence part of the judgment and directed the release of the appellant after due admonition under Section 3 of the Act.
Issues: The issues involved the consideration of the nature of the offences, absence of criminal antecedents, and the legislative intent of the Probation of Offenders Act, 1958.
Ratio Decidendi: The court applied the legislative intent of the Act and the decisions rendered by the Hon'ble Apex Court in Dalbir Singh and Mohd. Hashim to extend the benefit of the Act of 1958 to the accused-appellant.
Final Decision: The present appeal was partly allowed, maintaining the conviction of the accused-appellant for the offences under Sections Section 2 of R.P.C.A Act and Section 3/25 of Arms Act, but directing the release of the appellant after due admonition under Section 3 of the Act.

ORDER

1. In the wake of instant surge in COVID - 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This Criminal Appeal has been preferred under Section 374 Cr.P.C. praying for the following reliefs:-

"It is, therefore, prayed that the appeal be kindly accepted, the conviction and sentence passed by the lower court be set aside and the appellant be acquitted."

3. The matter pertains to an incident that occurred in the year 1990 and the present appeal has been pending since 1993.

4. Vide impugned judgment dated 29.09.1993 the learned Additional Sessions Judge, Sojat in Sessions Case No.118/92 (35/90) convicted the appellant for the offences under Sections 2 of R.P.C.A Act & Section 3/25 of Arms Act and sentenced him to undergo six months' S.I., along with a fine of Rs. 250/-, default in payment of which he was to further undergo one month simple imprisonment & sentenced him to undergo one year' S.I., along with a fine of Rs. 200/-, default in payment of which he was to further undergo one month simple imprisonment respectively.

5. Learned counsel for the accused-appellant submits that the accused-appellant do not have any criminal antecedents to his discredit.

6. Learned counsel for the accused-appellant further submits that the sentence awarded to the accused-appellant(s) was suspended by this Hon'ble Court vide the order dated 14.10.1993 passed in S.B. Criminal Misc. Suspension of Sentence Petition No.397/1993, and thus, he is on bail.

7. Learned counsel for the accused-appellant further submits that in case, if this Court is not inclined to acquit the appellant of the charges levelled against him, that looking to his age, absence of criminal antecedents against him, he is entitled to be extended the benefit under Section 3 of the Probation of Offenders Act, 1958 (hereinafter referred to as 'the Act') and as per Section 360 Cr.P.C.

"3. Power of court to release certain offenders after admonition.- When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.

Explanation.-For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4."

8. On the other hand, learned Public Prosecutor opposes the appeal and submits that looking to the overall facts and circumstances of the case and the well reasoned speaking order passed by the learned court below, the accused-appellant is not entitled for any indulgence by this Court.

9. Heard learned counsel for the parties as well as perused the record of the case.

10. In Dalbir Singh Vs. State of Haryana (2000) 5 SCC 82 the Hon'ble Apex Court observed as under;-

"Parliament made it clear that only if the court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence."

Thus Parliament has left it to the court to decide when and how the court should form such opinion. It provided sufficient indication that releasing the convicted per

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