Unfortunate That Provisions For Probation Are Not Much Utilized By Courts: Allahabad HC

Allahabad HC : Grants Probation In 28 Years Old Case For Attempt To Homicide

In a latest, landmark and extremely laudable judgment titled Ramdas Harijan & Ors. Vs. State of UP in Criminal Appeal 2012 of 2003 reserved on December 11, 2019 and delivered on January 6, 2020, the Allahabad High Court has very rightly gone the extra mile and asked the courts to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. It very rightly lamented that provisions for probation are not much utilized by the Courts. All the Courts must be careful on this score always!

To start with, Justice Siddharth sets the ball rolling in para 1 of this noteworthy judgment by first and foremost observing that, “Heard Sri Santosh Kumar Singh, learned counsel for the appellants, Sri Gopal Ji Rai, learned counsel for the informant and Sri Gyan Narayan Kanojia, learned A.G.A. for the State and perused the record.”

To put things in perspective, it is then pointed out in para 2 that, “This criminal appeal has been preferred by Ramdas Harijan son of Jagnoo, Sonarase son of Jagnoo, Ramjanam son of Ramdas, Ram Jeet son of Sonarase, Ramesh son of Shyam Lal and Suryabhan son of Banarsi against the judgment and order dated 03.05.2003 passed by Additional Sessions Judge (Fast Track Court No. 3), Ghazipur in Sessions Trial No. 43 of 1994 (State vs. Ramdas Harijan and others) convicting and sentencing the appellants for offence under Section 323/149 IPC for a period of one year rigorous imprisonment, under Section 147 IPC for a period of one year rigorous imprisonment and under Sections 325/149 IPC for a period of five years rigorous imprisonment and a fine of Rs. 5,000/-, in default of payment of fine to undergo four months additional imprisonment and under Section 308/149 IPC for a period of five years rigorous imprisonment and a fine of Rs. 5,000/-, in default of payment of fine to undergo four months additional imprisonment. All the sentences have been directed to run concurrently.”

As it turned out, para 3 then brings out that, “During the pendency of this appeal appellant nos. 1 and 2, Ramdas Harijan and Sonarase both sons of Jagnoo, have died and the appeal has been dismissed as abated against them by the order dated 30.5.2019 passed by this court. Now the appeal survives only regarding appellant nos. 3, 4, 5 and 6.”

   Be it noted, para 4 then envisages that, “The prosecution case is that informant, Ram Adhar, son of Pardesi and the accuseds are the residents of village Kudila, Police Station – Bhudkuda, District – Ghazipur. On 26.09.1991 when the informant was making his hut on his abadi land the accuseds Ramdas, Sonarase, Shyam Lal, Ram Janam, Ramjeet and Ramesh, came armed with lathi-danda with common intention and stated that the abadi belongs to them. Suryabhan son of Banarasi came running on the spot and exhorted the accused to beat the informant. On this they started beating the informant with lathi. On his alarm members of his family, namely, Pardesi, Doma Ram, Km. Rita, Km. Sita, Smt. Geeta, Smt. Shyamdei, Smt. Kalawati, Smt. Vidya Devi, Km, Sumitra, daughter of Doma Ram, ran towards the informant and they were also caused injuries by the accuseds. On account of injuries inflicted by the accuseds, mother of informant, Vidya Devi and his grand-mother suffered fractures in hand. Both became unconscious and fell down. Bhuri Ram son of Chauthi, Kashi son of Ramnath, etc., and many persons of the village saw the incident. Informant took his mother in a cot along with other injured to police station. The accuseds set the hut of the informant on fire. The information of the incident was given at the police station Bhudkuda on 26.06.1991 and on its basis FIR was registered at 17:30 hours as Case Crime No. 150 of 1991, under Sections 147, 323, 325, 504, 308 IPC against the accuseds.”

What’s more, it is then stated in para 5 that, “The investigation was entrusted to the S.H.O., Sri J.P. Bharti. The injureds were examined by the doctor and number of injuries were found on the body of the injureds. The Investigating Officer submitted charge sheet against the accuseds. Before framing of charge accused, Shyam Lal, died and charges were framed against the remaining accuseds under Sections 147, 308/149, 325/149, 323/149 and 504 IPC. The accuseds denied the charges and sought trial.”

It would be pertinent to mention here that it is then observed in para 12 that, “After hearing the counsels for the parties this court finds that the offence under Sections 323 and 325 IPC can be compounded by the person to whom the hurt is caused. The offence under Section 308 IPC is not compoundable. In the present case only one of the injured, the informant, has filed his affidavit while the other injureds, namely, Smt. Vidya, Smt. Shyamdei, Smt. Geeta, Doma Ram, Km. Reeta, Km. Sumitra, Km. Sita, Smt. Kalawati and Pardesi, have not filed any affidavit praying that the offences caused against them by the appellants may be compounded. The affidavit of the informant shows that it has been filed only on his behalf and not on behalf of any of the injureds as their pairokar. In view of the above position of the record the compounding of the offences under which the appellants have been convicted cannot be allowed.”

On expected lines, what next follows more significantly is that it is then observed in para 13 that, “However keeping in view the fact that the incident took place about 28 years ago, the parties are neighbours residing in the same village, informant has filed affidavit before this court that their relations have become normal and they are residing peacefully in the village, he does not wants the enmity to be revived, this court feels that the appellants should be given benefit of Section 4 of the Probation of Offenders Act, 1958 in this appeal while upholding the judgment and order of the trial court.”

Most significantly, it is then observed about Section 4 of the Probation of Offenders Act which deals with power of court to release certain offenders on probation of good conduct as elaborated upon in para 14 and similarly about Section 360 of Code of Criminal Procedure which deals with order to release on probation of good conduct or after admonition as elaborated upon in para 15 in clear and convincing language  by stating unequivocally in para 16 that, “These statutory provisions very emphatically lay down the reformatory and correctional object of sentencing and obligates the trial court as well as appellate courts to give benefit of probation in fit cases as provided under law. Unfortunately, this branch of law has not been much utilized by the courts. It becomes more relevant and important in our system of administration of justice where trial is often concluded after a long time and by the time decision assumes finality, the very purpose of sentencing looses its efficacy as with the passage of time the penological and social priorities change and there remains no need to inflict punishment of imprisonment, particularly when the offence involved is not serious and there is no criminal antecedent of the accused persons. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.”

To substantiate what has been stated in para 16, we then see that relevant case law are quoted as we see for ourselves in para 17 that, “In the case of Subhash Chand and others vs. State of U.P., 2015 Lawsuit (Alld) 1343, this court has emphatically laid down the need to apply the law of probation and give benefit of the beneficial legislation to accused persons in appropriate cases. This court issued following directions to all trial courts and appellate courts:

It appears that the aforesaid beneficial legislation has been lost sight of and even the Judges have practically forgotten this provision of law. Thus, before parting with the case, this Court feels that I will be failing in discharge of my duties, if a word of caution is not written for the trial courts and the appellate courts. The Registrar General of this Court is directed to circulate copy of this Judgment to all the District Judges of U.P., who shall in turn ensure circulation of the copy of this order amongst all the judicial officers working under him and shall ensure strict compliance of this Judgment. The District Judges in the State are also directed to call for reports every months from all the courts, i.e. trial courts and appellate courts dealing with such matters and to state as to in how many cases the benefit of the aforesaid provisions have been granted to the accused. The District Judges are also directed to monitor such cases personally in each monthly meeting. The District Judges concerned shall send monthly statement to the Registrar General as to in how many cases the trial court/appellate court has granted the benefit of the aforesaid beneficial legislation to the accused. A copy of this order be placed before the Registrar General for immediate compliance.””

Moving on, para 18 then states that, “In addition to the above judgment of this Court, this Court finds that the Hon’ble Apex Court in the case of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand & others (2004) 7 SCC 659, giving the benefit of Probation of Offenders Act, 1958 to the accuseds has observed as below:

“The learned counsel appearing for the accused submitted that the accident is of the year 1990. The parties are educated and neighbours. The learned counsel, therefore, prayed that benefit of the Probation of Offenders Act, 1958 may be granted to the accused. The prayer made on behalf of the accused seems to be reasonable. The accident is more than ten years old. The dispute was between the neighbors over a trivial issue of claiming of drainage. The accident took place in a fit of anger. All the parties educated and also distantly related. The accident is not such as to direct the accused to undergo sentence of imprisonment. In our opinion, it is a fit case in which the accused should be released on probation by directing them to execute a bond of one year for good behaviour.”

While continuing in the same vein, it is then further added in para 19 that, “Similarly, in Jagat Pal Singh & others Vs. State of Haryana, AIR 2000 SC 3622, the Hon’ble Apex Court has given the benefit of probation while upholding the conviction of accused persons under Sections 323, 452, 506 IPC and has released the accused persons on executing a bond before the Magistrate for maintaining good behaviour and peace for the period of six months.”

Now coming to the concluding paras, para 20 holds that, “In the light of above discussion, I find no illegality, irregularity or impropriety nor any jurisdictional error in the impugned judgment and order of the court below. The conviction recorded by the court below under Sections 147, 323/149, 325/149, 308/149 IPC is upheld and is not required to be disturbed.” It is then rightly held in para 21 that, “However, instead of sending the appellants to jail, they shall get the benefit of Section 4 of the Probation of Offenders Act. Consequently, the appellants shall file two sureties to the tune of Rs. 25,000/- coupled with personal bonds to the effect that they shall not commit any offence and shall observe good behaviour and shall maintain peace during the period of one year. If there is breach of any of the conditions, they will subject themselves to undergo sentence before the court below. The bonds and sureties aforesaid be filed by the accused persons within two months from the date of the judgment as per law and Rules.” Finally, it is held in para 22 that, “Accordingly, this appeal is partly allowed regarding sentences of the appellants.”

In conclusion, the Allahabad High Court has very rightly underscored that it is unfortunate that provisions for probation are not much utilized by the Courts. It very rightly grants probation in 28 year old case for attempt to homicide. All the courts must pay heed to what the Allahabad High Court has laid down in this latest and laudable judgment wherein it has itself cited many relevant case laws decided by the Allahabad High Court and Supreme Court also! No denying or disputing!

Sanjeev Sirohi

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