{"id":13263,"date":"1999-07-26T00:00:00","date_gmt":"1999-07-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/h-p-vaid-vs-parveen-soni-ors-on-26-july-1999"},"modified":"2018-04-05T00:58:58","modified_gmt":"2018-04-04T19:28:58","slug":"h-p-vaid-vs-parveen-soni-ors-on-26-july-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/h-p-vaid-vs-parveen-soni-ors-on-26-july-1999","title":{"rendered":"H.P. Vaid vs Parveen Soni & Ors. on 26 July, 1999"},"content":{"rendered":"
Delhi High Court<\/div>\n
H.P. Vaid vs Parveen Soni & Ors. on 26 July, 1999<\/div>\n
Equivalent citations: 1999 VAD Delhi 52, 80 (1999) DLT 221, 1999 (50) DRJ 315<\/div>\n
Author: S Kapoor<\/div>\n
Bench: S Kapoor<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
S.N. Kapoor, J. <\/p>\n
1.  In this petition following two questions arise for consideration:\n<\/p>\n
     1.   Whether  the  complainant, being an aggrieved  person  could
\n     file the present petition under Article 227 ?\n<\/p><\/blockquote>\n
      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?\n<\/p><\/blockquote>\n
 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
\nfiled  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,
\nwhich  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
\nof the Court published in different newspapers and pasting them outside the Court room, school and her residence.\n<\/p>\n
 3.   The  learned  M.M. convicted the accused Parveen  Soni  under  Section
\n193\/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
\nfiled an appeal against her conviction but the same was dismissed.\n<\/p>\n
 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.\n<\/p>\n
 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
\nSub-section  (2)  of Section 4 the Act without calling the  report  of  the Probation Officer. Consequently, the order should have been set aside.  The
\npresent  petition has been moved as public interest litigation for  curbing perjury.\n<\/p>\n
 6.   I  have  heard petitioner as well as the learned Counsel for  the  espondent and gone through the record.\n<\/p>\n
 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 :\n<\/p>\n
       “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
\n     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
\n     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.\n<\/p><\/blockquote>\n
 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 :\n<\/p>\n
     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
\nthe 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-\n<\/p>\n
tional  sentence, he may file an appeal under Sec. 374 or 375 of  the  Code
\nand  in the appeal invite the Court to exercise powers under Sec. 11(2)  of
\nthe  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
\nthe  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
\ncomplainant has no right of appeal. Appeal No. 352 of 1981 under Sec. 11(2)
\nof the Act now under our consideration having been filed by the complainant
\nis  in  our  opinion incompetent and the memo is  liable  to  be  rejected.\n<\/p>\n
      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
\nunder 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.\n<\/p>\n
 7.3. The  learned Counsel for the respondent also relies upon the  judgment
\nof Calcutta High Court in Arvind Mohan Sinha Vs. Prahlad Chandra,  in support of his contention that even revision would not lie.\n<\/p>\n
In  this regard, observations in paras 14, 15 and 16 at p. 439 being  rele-\n<\/p>\n
vant, are reproduced:\n<\/p>\n
      “14-15. Sub-Section (2) of Section 11 of the Probation of Offend-\n<\/p><\/blockquote>\n
     ers Act provides for appeal and it reads as follows:\n<\/p><\/blockquote>\n
      “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
\n     Court.\n<\/p><\/blockquote>\n
      It  is  clear that this section provides for an appeal  from  any order  passed  under Sections 3 and 4,  notwithstanding  anything
\n     contained in the Code of Criminal Procedure. This is important in
\n     view of the provisions of Section 411 of Criminal P.C. which bars
\n     appeal from certain orders passed by a Presidency Magistrate.\n<\/p><\/blockquote>\n
      16.  Two  of the matters before us are revision applications  but in  view  of clear provision for appeal under Section 11  of  the
\n     Probation  of Offenders Act, revision applications under  Section
\n     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.”\n<\/p><\/blockquote>\n
 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
\nof 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.\n<\/p>\n
 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
\nall 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
\nframe 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
\nand  314  of  the Cr.P.C. But in the matter of sentence,  only  accused  is required to be heard for, Section 248(2) provides:\n<\/p>\n
       “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
\n     accused  on  the  question of sentence, pass  sentence  upon  him
\n     according to law”.\n<\/p><\/blockquote>\n
 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
\nreleasing him on probation was set aside by the Supreme Court and the Court made following observations in paras 9 and 13;\n<\/p>\n
     “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
\n     again  through various decisions that the benefits  mentioned  in  Secs. 3 and 4 are subject to the limitations laid down in  those
\n     provisions and that the word `may’ in Sec. 4 of the Act is not to
\n     be understood as `must’ Rattan Lal vs. State of Punjab,   Isher Das Vs. State of  Punjab,<\/a>  ; Ram Parkash Vs. State of Himachal Pradesh, .\n<\/p><\/blockquote>\n
      xx xx xx  <\/p>\n<\/blockquote>\n
      13.  We therefore, set aside that part of the impugned  judgments
\n     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
\n     months and a fine would be sufficient to meet the ends of justice in this case”.\n<\/p><\/blockquote>\n
      In conclusion the Supreme Court sentenced him to undergo rigorous mprisonment  for six months for offences under Sections 419  and
\n     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.\n<\/p><\/blockquote>\n
 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.\n<\/p>\n
 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:\n<\/p>\n
       “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”.\n<\/p>\n
 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:\n<\/p>\n
       “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
\n     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
\n     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.\n<\/p><\/blockquote>\n
     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.\n<\/p><\/blockquote>\n
In that case Counsel for the appellant invoked the application of Probation f Offenders Act before the Supreme Court. The Supreme court observed:\n<\/p>\n
       “Sections 4 and 6 of the Act indicate the procedure requiring the
\n     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
\n     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.”\n<\/p><\/blockquote>\n
 8.4. It is obvious that the present case is not covered by Section 3 of the
\nAct. 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
\nperiod not exceeding 3 years.\n<\/p>\n
 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.\n<\/p>\n
 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
\nreceive  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.\n<\/p>\n
 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:\n<\/p>\n
       “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.”\n<\/p>\n
 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.\n<\/p>\n
 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
\nthe submission of the petitioner that there was miscarriage of justice for, the accused was released under Section 4 of the Act.\n<\/p>\n
 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
\nof  nearly 10 years; and the fact that she had already undergone period  of probation.\n<\/p>\n
 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
\nnot  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.\n<\/p>\n
 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
\nobtaining 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
\nOfficer Delhi also must ensure that the Probation Officers are made readily available and give a report within a week by making an appropriate arrangement.\n<\/p>\n
 11.  With these observations the petition is disposed of.\n<\/p>\n
 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.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court H.P. Vaid vs Parveen Soni & Ors. on 26 July, 1999 Equivalent citations: 1999 VAD Delhi 52, 80 (1999) DLT 221, 1999 (50) DRJ 315 Author: S Kapoor Bench: S Kapoor JUDGMENT S.N. Kapoor, J. 1. In this petition following two questions arise for consideration: 1. Whether the complainant, being an aggrieved […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-13263","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nH.P. 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