Case Note & Summary
The petitioner, Smt. Dewaltai w/o Tulshidas Nandgawe, was the original accused no. 2 in a criminal case for offences punishable under Sections 409, 420, 468, and 471 read with Section 34 of the Indian Penal Code, 1860, relating to alleged misappropriation of Rs. 42,729/-. The trial court convicted her under Sections 409 and 468 IPC and sentenced her to three years rigorous imprisonment with a fine of Rs. 5,000/- and default sentence of six months. Her appeal before the Additional Sessions Judge was dismissed. She then filed a criminal revision before the Bombay High Court. The petitioner, aged about 63 years, was suffering from cancer and was on her deathbed, physically weak and under continuous medical treatment. The misappropriated amount had been repaid to the government treasury by the co-accused (her husband), who was acquitted. The court considered the petitioner's age, health, and the fact that she was not a dangerous criminal. Relying on the Supreme Court's decision in Hari Singh v. Sukhbir Singh, the court held that she was entitled to the benefit of probation under Section 360 of the Code of Criminal Procedure, 1973. The court modified the sentence, releasing her on probation of good conduct for one year with a bond of Rs. 10,000/- and a surety of like amount, and directed her to keep peace and be of good behaviour. The revision was partly allowed.
Headnote
A) Criminal Law - Probation of Offenders - Section 360 CrPC - Benefit of Probation - The petitioner, a 63-year-old lady suffering from cancer, was convicted under Sections 409 and 468 IPC for misappropriation of Rs. 42,729/-. The amount was repaid by co-accused. Considering her age, health, and the fact that she is not a dangerous criminal, the court held that she is entitled to the benefit of probation under Section 360 CrPC. The sentence was modified to release her on probation of good conduct for one year with a bond of Rs. 10,000/- and a surety of like amount. (Paras 5-7) B) Criminal Law - Sentencing - Mitigating Factors - Age and Health - The court considered the petitioner's advanced age (63 years) and serious illness (cancer) as mitigating factors justifying leniency in sentencing. The court observed that many offenders are not dangerous criminals but weak characters who surrendered to temptation, and probation encourages their sense of responsibility. (Para 5) C) Criminal Law - Misappropriation - Repayment of Amount - The fact that the misappropriated amount of Rs. 42,729/- was repaid to the government treasury by the co-accused was considered a mitigating circumstance. The court noted that the petitioner was not the principal offender and the amount was recovered. (Para 4)
Issue of Consideration
Whether the petitioner, a 63-year-old lady suffering from cancer, is entitled to the benefit of probation of good conduct under Section 360 of the Code of Criminal Procedure, 1973, despite her conviction under Sections 409 and 468 of the Indian Penal Code, 1860.
Final Decision
The revision is partly allowed. The conviction under Sections 409 and 468 IPC is maintained, but the sentence is modified. The petitioner is released on probation of good conduct for one year on executing a bond of Rs. 10,000/- with one surety of like amount to keep peace and be of good behaviour. The fine amount, if paid, shall be refunded.
Law Points
- Probation of good conduct under Section 360 CrPC
- Benefit of probation for elderly and sick offenders
- Non-dangerous offenders entitled to probation
- Repayment of misappropriated amount as mitigating factor
