Parag Borag v. The State of Assam

JUDGMENT & ORDER (ORAL)

¶1Heard Mr. N Mahajan, learned counsel for the petitioner. Also heard Mr. B Sarma, learned Additional Public Prosecutor, Assam.

¶2The present application is filed assailing a judgment and order dated 29.06.2011 passed by the learned Judicial Magistrate, 1st Class in GR case No. 2/2009 convicting and sentencing the petitioner to undergo Rigorous Imprisonment for 6 months under Section 324 IPC and to pay a fine of Rs. 1000/- and in default of payment of fine to suffer another one month of Simple Imprisonment.

¶3Aforesaid judgment and sentence was challenged by the petitioner before the learned Additional Sessions Judge (FTC), Biswanath Chariali in Criminal Appeal No. 18(S-3)/2011. The said appeal also met with the same fate, however, the learned Additional Sessions Judge, Biswanath Chariali convicted the accused petitioner under Section 447 of IPC and sentenced him to suffer Rigorous Imprisonment for 3 months and to pay a fine of Rs. 500/- and in default of payment of fine to undergo further Simple Imprisonment of 15 days. The aforesaid two judgments are challenged before this Court.

¶4The prosecution story in a nutshell is that on 31.12.2008 at around 12.30 pm the accused/ petitioner, namely, Porag Borah caused bodily injured on the left hand side and on the backside of the son of the informant by using a sharp 'Khukuri' inside the premises of the school, namely, Morning Star English School. Accordingly, the FIR was filed before the Ghahigaon Out Post vide GDE No. 491 dated 31.12.2008 and the same was forwarded to the Officer-in-Charge of Gohpur Police Station and registered as Gohpur PS case No. 2/2009 under Section 447/326 IPC. Page No.# 3/7

¶5The learned Judicial Magistrate, 1st Class, Biswanath Chariali issued process, the accused appeared before the learned Magistrate on receipt of summons. Formal charges were framed under Section 447/448/324 of IPC, which the accused pleaded not guilty and claimed to be tried.

¶6To bring home the charges, the prosecution examined as many as seven witnesses along with one court witness. The accused was examined under Section 313 Cr.P.C. The accused/petitioner did not adduce any evidence in his favour.

¶7After appreciation of the evidence, the learned trial Court had convicted the petitioner as recorded hereinabove.

¶8On appeal, the learned Additional Sessions Judge re-appreciated the evidence in details and came to the conclusion as recorded hereinabove and modified the sentence.

¶9Feeling aggrieved by the aforesaid judgment, the present revision petition is preferred by the petitioner.

¶10Mr. Mahajan, learned counsel for the petitioner, at the outset, submits that he shall not challenge the impugned order of conviction on merit and shall confine his submission in the appeal only in respect of the order of sentence.

¶11Mr. Mahajan, learned counsel argues that the petitioner is entitled for benefit under Section 360/361 Cr.P.C. and under the Probation of Offenders Act, 1958 (hereinafter referred to as Act, 1958) which had not been granted by both the learned Courts below. Mr. Mahajan, learned counsel further submits that accused petitioner has not been convicted previously for any offence and he is first time offender.

¶12According to Mr. Mahajan, learned counsel though the learned trial Court ought Page No.# 4/7 to have considered granting benefit under the Act, 1958, however, same was rejected only on the consideration of gravity of the alleged offence and at the same time, the learned appellate court even did not consider grant of benefit to the petitioner though the conviction and sentence was modified.

¶13It is further contended by the learned counsel for the petitioner that the accused is having a right of consideration under the Act, 1958 and therefore, the right of the petitioner has been violated. It is argued that the learned Appellate Court did not invoke the provisions of the Act, 1958 nor the provisions of Section 360/361 Cr.P.C while sentencing the accused petitioner and the Trial court has not given any special reason in the impugned judgment and order of conviction and sentence for not giving benefit of such provision.

¶14The learned Addl. Public Prosecutor, Mr. B Sarma, also fairly submits that the accused is having a valuable right for proper consideration under the Act, 1958, however, the learned Trial court has mechanically rejected such prayer taking note of the gravity of the offence.

¶15This court after perusal of the materials available on record has also not found any patent error or illegality in the judgments. Therefore, this court will now deal with the entitlement of the petitioner of the benefit under the Act, 1958.

¶16It is by now well settled that Act, 1958 is a milestone in progress of modern liberal trend of reform in the field of Penology. It is the result of recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. It was also held by Hon'ble Apex Court in the case of Ved Prakash Vs. State of Haryana reported in 1981 1 SCC 447, that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial court should collect material necessary to award a just punishment in circumstances. It was further Page No.# 5/7 held that the social background and the personal factors of the crime doer are very relevant in this regard.

¶17In the case of Sita Ram Paswan Vs. State of Bihar reported in AIR 2005 SC 3534, the Hon'ble Apex Court has laid down certain principle for exercise of discretionary power under the Act and the consideration required. The hon'ble Apex Court opined that while exercising the discretionary power under the Act 1958, the courts are to consider the circumstances of the case, the nature of offence and the character of the offender. While considering the nature of the offence, the court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. It was concluded by the hon'ble Apex Court that the benefit available to the accused under section 4 of the Act, 1958 is subject to the Limitation embodied in the provision and the word 'may' clearly indicates that the discretion is vested with the court whether to release the offender in exercise of power under section3/4 of the Act, 1958, having regard to the nature of the offence, the character of the offender and overall circumstances of the case.

¶18It was further held by the hon'ble Apex Court that such power can be exercised by the court even at the appellate or revisional stage or also by Apex Court hearing appeal under Article 136 of the Constitution of India.

¶19Now in the backdrop of the aforesaid settled proposition of law, let this court consider the arguments advanced by the learned counsel for the parties.

¶20This court after perusal of the judgment, is of the opinion that the learned Appellate Court did not make any considerations under the Act, 1958, inasmuch as, such consideration is a right of the accused and duties of the courts. A court may not grant benefit in the given facts of a case, however, consideration must be given. At the same time, the learned trial Court did not grant the benefit Page No.# 6/7 under the Act, 1958 to the petitioner citing nature of offence.

¶21In the case in hand, the offence was committed on 31.12.2008. The nature of offence and manner it was committed cannot also be said to be heinous or premeditated, in the given circumstances of the case . It is also asserted by the learned counsel that the petitioners have not committed any similar nature of offence or to say any offence prior to the incident or during pendency of this appeal till date. The learned APP has also submitted that he has no instruction as regards any criminal activities of the petitioner. This court also had considered that the accused petitioner has suffered for last 16 years litigating in the court and facing trial, appeal and revision.

¶22Considering the above stated facts and without entering into the merits of the judgments impugned and considering the relevant provisions and settled propositions of law and the period lapsed from the date of incident, this court is of the considered opinion that this is a fit case where the benefit of provisons of Probation of Offenders Act, 1958 should be given to the accused petitioners by this court in exercise of its revisonal power. Accordingly, for the reasons recorded hereinabove, the petitioner be given the benefit under the provision of Probation of Offenders Act, 1958 and accordingly, sentence is modified to that effect and it is provided that instead of sending them to jail, he should be given the benefit of section 4 of the Probation of Offenders Act, 1958.

¶23Accordingly it is directed that the petitioner will file two sureties to the tune of Rs.20,000/- along with personal bond before the learned trial court i.e., the learned Judicial Magistrate, 1st Class, Biswanath Chariali and undertake to the effect that the petitioner shall maintain peace and good behaviour during the period of one year from today. The aforesaid bond be filed by the petitioner within a period of 2 months from the date of this judgment. Page No.# 7/7

¶24With the aforesaid, the revision petition stands allowed.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010121152012 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCrl.Rev.P./277/2012ooo oooooo PARAGoBORAGo S/OoSRIoJITENoBORAHoR/OoVILL-oBARANGABARIoHOKAJANoP.S.oGOHPUR,o INoTHEoDIST.oOFoSONITPUR,oASSAM, VERSUSo THEoSTATEoOFoASSAMo AdvocateoforotheoPetitionerooooo:oMR.PoKoDAS,oMR.AoCHOUDHURY,MRNoJoDAS,MR.BoKo MAHAJAN,MR.RoALIo AdvocateoforotheoRespondento:o,o,,,PP,oASSAMoo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo BEFORE HON'BLE2MR2JUSTICE2ARUN2DEV2CHOUDHURY For2the2Petitioners222222222222222:2Mr.2N2Mahajan,2Advocate. o For2the2Respondents22222222222:2Mr.2B2Sarma,2Addl.2PP,2Assam oooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Date2of2Hearing222222222222222222:205.12.2024 Page No.# 2/7 Date of Judgement : 05.12.2024