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2023 Supreme(Online)(KER) 12604
HIGH COURT OF KERALA
P. G. Ajithkumar, J
SABITHA – Appellant
Versus
STATE OF KERALA – Respondent
OP(Crl.) 651 2023
JAISON JOSEPH, T.S.SANU, M.N.SANJITH, JIMMY JOSEPH, ARCHANA RAMANAN, VEENA VALLIKANTHAN
The court emphasized the obligation of the trial court to implement the appellate court's order regarding probation consideration under applicable law.
Headnote:
Probation - Criminal Proceedings - Probation of Offenders Act, 1958 - Sections 4
Fact of the Case:
The petitioner, convicted under Section 381 IPC, appealed against the order confirming her sentence but was remanded to trial court for consideration of probation under the Probation of Offenders Act, 1958. The Magistrate later confirmed the sentence, claiming the accused was untraceable.
Finding of the Court:
The court found that the Magistrate's order violated the appellate court's directive to explore probation. The trial court failed to take necessary steps to ensure the accused's appearance and comply with the appellate court's instructions.
Issues: Whether the trial court's confirmation of the sentence violated the appellate court's order to consider the application of the Probation of Offenders Act.
Ratio Decidendi: The appellate court directed that the trial court must consider probation and take coercive measures to ensure the accused's attendance, hence affirming that the previous order by the Magistrate was improper.
Final Decision: The original petition is allowed; the trial court's order is set aside and directed to comply with previous appellate instructions.
JUDGMENT
The above Original Petition(Crl) is filed with the following prayers:-
i. call for the records in Ext.P3 order in C.C. No. 331 of 2010 and set aside Ext.P3 order and direct Judicial First Class Magistrate Court-II, Aluva to call for a fresh report from District Probation OfÏcer, Kollam under Section 4 of the Probation Offenders Act.
2. The petitioner is the accused in C.C.No.331/2010 on the files of the Judicial First Class Magistrate Court-II, Aluva arising from Crime No.1200/2010 of Angamali Police Station registered for the offences punishable under Section 381 of the IPC. After trial the petitioner was found guilty and she was convicted and sentenced to undergo rigorous imprisonment for two years and two months and fine of Rs.1,000/- under Section 381 of the Indian Penal Code with a default sentence as evident by Ext.P1 judgment.
3. Aggrieved by the conviction sentence, the petitioner filed an appeal before the Principal Sessions Court, Ernakulam and as per Ext.P2, the Sessions Court was pleased to confirm the conviction and remanded the matter to the trial court to consider the applicability of the Probation of Offenders Act,1958. Thereafter, the learned Magistrate passed Ext.P3 order stating that since the accused is not traceable sentence imposed in Ext.P1 judgment is confirmed. Hence this Original Petition(Crl).
4. Heard the learned counsel for the petitioner and the the learned Public Prosecutor.
5. It is an admitted fact that the petitioner was convicted and sentenced as per Ext.P1 judgment. It is also an admitted fact that the conviction was confirmed by the appellate court as per Ext.P2 and the sentence was set aside and the case was remanded to the trial court. It will be better to extract the relevant portion of Ext.P2 judgment:-
“In the result, this appeal is allowed in part. The conviction of the appellant accused for the offence punishable under Section 381 of the 1PC is confirmed. But the sentence imposed on the appellant is set aside The case is remanded to trial court. The learned Judicial Magistrate of First Class-1I, Aluva shall call for a report from concerned District Probation OfÏcer under section 4 of Probation of Offenders Act, 1958 and consider releasing the appellant on probation of good conduct under said provision. Up on considering the report if any obtained, the learned Magistrate shall decide whether appellant is to be released under said provision or she is to be punished. Learned Magistrate shall also consider applicability of proviso to Section 4 of the Act. In case accused refuses to appear before the court to execute bond after notice, or accused is not available, the learned Magistrate shall impose appropriate sentence even in the absence of appellant accused as she had already been heard on sentence. The learned Magistrate shall also consider directing appellant to pay compensation to PW1 under probation of offending Act, 1958 after taking into consideration the valve of stolen property already restored to him if any. Payment of such compensation if ordered will be a condition for releasing the appellant on probation without imposing sentence”
3. From the above, it is clear that, the case is remanded to the trial court and the learned Magistrate is directed to call for the reports from the concerned District Probation OfÏcer under Section 4 of the Probation of Offenders Act,1958 and consider releasing the appellant on probation of good conduct under the said provision.
4. Thereafter, Ext.P3 order is passed by the learned Magistrate. It will be better to extract the same:-
Accused is represented by counsel. It is submitted that there is no instruction. As
28.09.2018 per order dated 03.04.2018 in Crl.A.
146/2016, since accused has refused to appear and she is not traceable sentence imposed on 31.03.2016 is confirmed. NBW to accused and notice to sureties (exn) to
29.11.2018
5. I am of the considered opinion that Ext.P3 order passed by the learned Magistrate is in total violation of Ext.P
