JUDGMENT
S.N. Kapoor, J.
1. In this petition following two questions arise for consideration:
1. Whether the complainant, being an aggrieved person 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, Krishna Nagar, Delhi under the petitioner Mr. H.P. Vaid at a monthly rent of Rs. 1,000/- excluding water and electricity charges since 1984. Though the petitioner had obtained signatures on various documents of Praveen Soni and 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, 1985 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 Praveen 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/-issued on 30.4.1995. Initially the injunction was granted by the learned Sr. Sub-Judge. Subsequently, the petitioner moved application under Section 340, Cr. P.C. 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 Praveen 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
193/196/209/471/511, IPC 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 (herein after 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 leaned Addl. 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 espondent and gone through the record.
7.1. A preliminary objection has been raised by the learned Counsel for the respondent to the effect that H.P. Vaid could not invoke jurisdiction of this Court for he has no locus standi in this regard. He relies upon Thakur Ram Vs. State of Bihar, . The Supreme Court had held in this case as under :
“No doubt, the terms of Sec. 435 under which the jurisdiction of the learned Sessions Judge was invoked are very wide and he could even have taken up the matter suo motu. It would, however, not be irrelevant to bear in mind the fact that the Court’s jurisdiction
was invoked by a private party. The criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who according to that party had caused injury to it. Barring a few exceptions, in criminal mat ters the party who is treated as the aggrieved party is the State which is the Custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book. In our opinion it was injudicious for the learned Sessions Judge to order the commitment of the appellants particularly so without giving any thought to the aspects of the matter to which we have adverted. Even the High Court has come to no positive conclusion about the propriety to
the direction made by the Sessions Judge and has merely said that the Sessions Judge was not unjustified in making the order which he made in each of the applications. For all these reasons we allow the appeals, quash the orders of the Sessions Judge as affirmed by the High Court and direct that the trials of each of he appellants shall proceed before the Magistrate according to law from the stages at which they were on the date on which the stay order became operative.
7.2. The second facet of submission of the learned Counsel for the respondent is that the Court could not act at the behest of the complainant in the matter of sentence. When a de facto complainant has no right of appeal under Section 11(2) of the Act, H.P. Vaid, who is not a complainant, could not file revision. Learned Counsel in support of his contention relies upon Parmal Ghosh Vs. State of West Bengal, 1984 Crl. LJ 1302. The Calcutta High Court has held in this case as under :
The Code has given the complainant right to apply in revision and in a small category of cases right of appeal against an order of acquittal, but he has not been given any such right to his grievance in the matter of sentence. In the matter of sentence unlike Sec. 234,Sec. 235(2) of the Code requires the Court to hear the accused only, although the trial might have originated in a petition of complaint. Denial of the right of hearing to
the complainant in the matter of sentence had its obvious justification. If the complainant had been given a right of hearing on sentence he would be praying for imposition of the maximum sentence motivated by a feeling of revenge and retribution. So the matter has been left to the discretion of the Court considering the age, circumstances, nature of offence, the prospect of reform and rehabilitation of the accused, the Court is expected to impose a proper sentence within the limits of law and in the lager background of social security. If the accused feels aggrieved with the correc-
tional sentence, he may file an appeal under Sec. 374 or 375 of the Code
and in the appeal invite the Court to exercise powers under Sec. 11(2) of
the Act. If the sentence is considered inadequate, the State may file an appeal under Section 377 of the Code, if no sentence has been imposed and
the accused has been dealt with under the provisions of the Act, in the broader interest of the society, the State, in our opinion, is competent to file an appeal. The significant fact is that the Code has omitted to give the complainant any say in the matter of sentence. We thus reach the conclusion that against an order passed under Secs. 3 and 4 of the Act, the
complainant has no right of appeal. Appeal No. 352 of 1981 under Sec. 11(2)
of the Act now under our consideration having been filed by the complainant
is in our opinion incompetent and the memo is liable to be rejected.
However, in that case revisional applications were considered and the matter was ordered to be remanded and it was further directed that on conviction if the accused would be punished with sentence or dealt with
under the provisions of the Act or under Section 360 of the Code keeping in mind that the Section 360(10) of the Cr. PC and Section 19 of the Act.
7.3. The learned Counsel for the respondent also relies upon the judgment
of Calcutta High Court in Arvind Mohan Sinha Vs. Prahlad Chandra, in support of his contention that even revision would not lie.
In this regard, observations in paras 14, 15 and 16 at p. 439 being rele-
vant, are reproduced:
“14-15. Sub-Section (2) of Section 11 of the Probation of Offend-
ers Act provides for appeal and it reads as follows:
“Notwithstanding anything contained in the Code, where an order under Section 3 or Sec. 4 is made by any Court trying the offender (other than a High Court) an appeal shall lie to the Court to which appeals ordinarily lie from the sentence of the former
Court.
It is clear that this section provides for an appeal from any order passed under Sections 3 and 4, notwithstanding anything
contained in the Code of Criminal Procedure. This is important in
view of the provisions of Section 411 of Criminal P.C. which bars
appeal from certain orders passed by a Presidency Magistrate.
16. Two of the matters before us are revision applications but in view of clear provision for appeal under Section 11 of the
Probation of Offenders Act, revision applications under Section
439, Criminal P.C. are misconceived. Mr. Roy, realised this position and had earlier applied for treating these Rules as appeals, Mr. N.C. Banerjee, appearing for the opposite parties relied upon on Article 115 of the I.L. Act and pleaded limitation.”
7.4. On this basis it is submitted by the learned Counsel for the respondent that where the State could file an appeal, and did not file it; the revision petition filed by the complainant shall also be incompetent for the persons like the petitioner would always be interested in using the criminal law as an instrument of wrecking personal vengeance. The private parties are not required to be heard on sentence. The sentence being a matter between the Court and the accused , only the accused is required to be heard and at the most State could file an appeal to protect the interest
of the society at large. It is contended that this Court should not invoke extraordinary jurisdiction to be used as an instrument to wreck personal vengeance of the applicant.
7.5. On the other hand the petitioner referred to a judgment in Surender Kr. Yadav Vs. Smt. Suvidya Yadav, 1986 RLR 619. In that case the accused was discharged. The revision petition was filed before Addl. Sessions Judge. The High Court though referred to Thakur Ram Vs. State, 1966 Crl.L.J. 700 took the view that the court can take the matter suo motu and observed that when the learned M.m. appeared to have taken an erroneous view of the interpretation of the legal proposition based on the interpretation of Section 239, the learned Additional Sessions Judge was justified in entertaining and deciding the revision though filed by the complainant in case instituted on police. The contention of the petitioner is that though the complaint was filed by the Sr. Sub-Judge at his behest, yet for
all practical purpose he was the complainant and he should be heard. It may be mentioned that in Surender Yadav’s case (supra), the question before the Court related to the framing of charge. Insofar as the question relating to
frame of charge is concerned the Court was supported to hear the submission of the accused as well as the prosecution in view of the language of Section 239 and the prosecution ( say the complainant) under Sections 239, 244
and 314 of the Cr.P.C. But in the matter of sentence, only accused is required to be heard for, Section 248(2) provides:
“Where in any case under this chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of Section 325 or 360, he shall after hearing the
accused on the question of sentence, pass sentence upon him
according to law”.
7.6. However in Nilgiri Bar Association Vs. T.K. Mahalaingum, AIR 1998 Sc 398-I (1998) CCR 76 (SC) Nilgiri Bar Association filed a revision challenging the order of M.M. releasing the accused on probation under Section 4 of the Probation of Offender Act for, the accused without having any academic qualification practiced as an advocate for as long as eight years and thus duped general public by posing himself to be an Advocate to the extent that he became Secretary of the Bar Association. Order
releasing him on probation was set aside by the Supreme Court and the Court made following observations in paras 9 and 13;
“9. By the words so couched in the sub-section Parliament has taken care to emphasize that before the relief (envisaged in the provision) is granted Court must take into account the circumstances of the case, among which “the nature of the offence and the character of the offender” must have overriding considerations. After bestowing judicial consideration on those factors, the Court must form an opinion as to whether it would be appropriate in that case to release the particular accused therein as envisaged in the sub-section. This Court has observed time and
again through various decisions that the benefits mentioned in Secs. 3 and 4 are subject to the limitations laid down in those
provisions and that the word `may’ in Sec. 4 of the Act is not to
be understood as `must’ Rattan Lal vs. State of Punjab, Isher Das Vs. State of Punjab, ; Ram Parkash Vs. State of Himachal Pradesh, .
xx xx xx
13. We therefore, set aside that part of the impugned judgments
by which respondent was released under Sec. 4 of the Act. For determining the measure of sentence to be based on him we are not against taking into account those factors which the learned Single Judge has found as mitigating grounds. Added to them is the long interval of time between the date of his conviction by the Trial Court and now. For all these, imprisonment for six
months and a fine would be sufficient to meet the ends of justice in this case”.
In conclusion the Supreme Court sentenced him to undergo rigorous mprisonment for six months for offences under Sections 419 and
420, IPC each and to pay a fine of Rs. 5,000/- each of these two counts. The aforesaid judgment indicates that the complaint may e heard on the point of sentence.
7.7. However, it may be mentioned that Thakur Ram Vs. State of Bihar (supra), was decided by three Hon’ble Judges of the Supreme Court , while Nilgiri Bar Association (supra), was decided by two Hon’ble Judges of the Supreme Court. Moreover, Thakur Ram Vs. State of Bihar (supra) was not considered. Consequently, this Court is bound to follow Thakur Ram Vs. State of Bihar (supra) and to hold that petitioner has no locus standi to be heard on the point of sentence. In such matters, not the individual complaint; State alone could be said to be aggrieved. Petitioner , accordingly, not being an aggrieved party has neither locus standi nor he required to be heard on the point of sentence.
8.1. Now coming to the next question of requirement of the report of the Probation Officer before granting probation, Section 4(2) of the Act provides:
“Before making any order under Sub-section (10, Court shall take into consideration the report, if any, of the Probation Officer concerned in reaction to the case”.
8.2 In this context from the side of the petitioner, it is submitted that in R. Mahalingam Vs. G. Padamavathi, 1979 Crl. LJ 20, Madras High Court has taken the following view:
“If any report is filed by the Probation Officer, the Court is bound to consider it. Obtaining such report of the Probation Officer is manadatory since the Sub-section (1) of Sec. 4 says
that the Court shall consider the report of the Probation Officer. Words “if any” do not mean that the Court need not call for a report from the Probation Officer. The words “if any” would only cover a case where notwithstanding such requisition the probation officer for one reason or other has not submitted a report. Before deciding to act under Sec. 4(1). It is manadatory on the part of the Court to call for a report from the Probation Officer and if such a report is received. It is manadatory on the
part of the Court to consider the report. But if for one reason or the other such a report is not forthcoming the Court has to decide the matter on other materials available to it. In the nstant case, the Magistrate passed order releasing the accused on probation without taking into consideration their character.
Held the requirement of Sec. 4(1) was not fulfillled and therefore the case remanded. 1965 (1) and 1970 Crl L.J. 465 Crl L.J. 955 (Orissa) and 1970 Crl.L.j. 465 (Goa) Foll”. > 8.3. He also relies upon Ram Singh Vs. State of Haryana, 1971 (30 SCC 914.
In that case Counsel for the appellant invoked the application of Probation f Offenders Act before the Supreme Court. The Supreme court observed:
“Sections 4 and 6 of the Act indicate the procedure requiring the
Court to call for a report from the Probation Officer and consideration of the report and any other information available relating to the character and physical and mental condition of the
offender. These facts are of primary importance before the Courtcan pass an order under the Probation of Offenders Act. This plea cannot be entertained in this Court.”
8.4. It is obvious that the present case is not covered by Section 3 of the
Act. Section 4 requires that the Court should consider for granting probation (a) circumstances of the case; (b) nature of the offences; (c) the character of the offender; (d) report of the Probation Officer; and (e) expediency to release on probation on good conduct. After having been satisfied on these points, the Court may, instead of sentencing him at once to any punishment, direct that he or she be released entering into bond with or without surety and to receive sentence when called upon direct such
period not exceeding 3 years.
8.5. In absence of report of Probation Officer, one feels that the learned MM could certainly not exercise jurisdiction under Section 4 of the Act.
9.1. But, at the same time one could not be oblivious to the fact the 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 she is convicted, regard being has 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 her to any punishment, direct that she be released on probation of good conduct on her entering into 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 behaviours. 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.
9.2. It may be mentioned that provision under section 360, Cr.P.C. is a latter provision. It is a matter of interpretation of criminal provision which is to be strictly interpreted and in case of two possible interpretations, interpretation in favour of the accused is to be preferred; and if there is conflict of application of different enactments latter in time shall prevail, provided application of the latter enactment is not excluded by express provision or by necessary implication. It may be mentioned that Sub-section (10) of Section 360 of Cr. P.C. Provides:
“Nothing in this Section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the force for the treatment, training or rehabilitation of youthful offenders.”
9.3. In so far as grant of probation is concerned, it neither relates to treatment nor to training or rehabilitation of youthful offenders for, the present case 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.P.C. To the said extent, the Probation of Offenders Act stands eclipsed.
9.4. 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.
9.5. The respondent was released on 3rd October, 1989. Thus, nearly ten years have passed. It is a case of female and not a male, as was the case in Nilgiri Bar Association Vs. T.K. Mahalingam (supra). Here the offences were committed once, while in that case the accused continuously committed offences for over eight years. This Court might not have hesitated in awarding sentence instead of accepting the release of the respondent on probation but for the provision under Section 360, Cr.P.C.; the time lapse
of nearly 10 years; and the fact that she had already undergone period of probation.
9.6. It is further clarified that the fact that this Court is not disturbing the order for the order is justified under Section 360, Cr.P.C. should
not be taken as an approval of releasing any accused, not covered by Section 360, Cr.P.C. under Section 4 of the Act, in the way, respondent has been released on probation. Releasing any offender not falling in the said exception , without report of Probation Officer under Section 4 of the Act shall not be justified.
10. However, before parting with this judgment, it appears desirable to state that the report of the Probation Officer must invariable be called before releasing any accused on probation under Section 4(1) of the Probation of Offenders Act, for clearly there is no source of collecting necessary information required under Sections 3 or 4 of the Act. Such a report would certainly help in assessing the antecedents, the family background, commision 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 facts 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.
11. With these observations the petition is disposed of.
12. Copies of this order be sent to the Chief Metropolitan Magistrate for information and to the Chief Probation Officer of National Capital Territory of Delhi for information and compliance.