Case Note & Summary
The applicant, original complainant, filed a criminal revision application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (corresponding to Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023) challenging the judgment and order dated 27.10.2016 passed by the learned Sessions Judge, Porbandar in Criminal Appeal No.29/2013. The Sessions Judge had partly allowed the appeal and extended the benefit of probation to the original accused Nos.1 and 2 (respondents herein) under the Probation of Offenders Act, 1958. The respondents were convicted by the learned JMFC, Kutiyana in Criminal Case No.460/2011 for offences under Sections 323, 324, 504, 506(2) and 114 of the Indian Penal Code, 1860 and Section 135 of the Bombay Police Act, 1951, arising from an FIR registered at Kutiyana Police Station, District Porbandar. The complainant argued that the Sessions Judge erred in granting probation as the accused were habitual offenders with multiple cases against them. The State and the accused opposed the revision, submitting that the Sessions Judge had exercised discretion properly. The High Court, after hearing the parties and perusing the record, found no error in the Sessions Judge's order. The court noted that the Sessions Judge had judicially exercised discretion in granting probation, and the complainant failed to substantiate the claim of habitual offending. Consequently, the revision application was dismissed, and the impugned order was confirmed.
Headnote
A) Criminal Procedure - Revision - Probation - Sections 397, 401 CrPC (Sections 438, 442 BNSS) - Scope of revision against order granting probation - The High Court in revision examined whether the Sessions Judge committed any error in granting probation to the accused convicted under Sections 323, 324, 504, 506(2), 114 IPC and Section 135 of B.P. Act - Held that the Sessions Judge exercised discretion judicially and no interference was warranted (Paras 1-5).
B) Probation of Offenders Act - Section 4 - Grant of Probation - Discretion of Appellate Court - The appellate court granted probation to accused Nos.1 and 2 despite conviction - The complainant alleged habitual offending but failed to substantiate - Held that the Sessions Judge did not err in extending the benefit of probation (Paras 3-5).
Issue of Consideration
Whether the learned Sessions Judge erred in extending the benefit of probation to the accused-respondents under the Probation of Offenders Act, 1958, and whether the High Court should interfere in revision.
Final Decision
The revision application is dismissed. The impugned judgment and order dated 27.10.2016 passed by the learned Sessions Judge, Porbandar in Criminal Appeal No.29/2013 is confirmed.
Law Points
- Probation of Offenders Act
- 1958
- Section 4
- Section 397 CrPC
- Section 401 CrPC
- Section 438 BNSS
- Section 442 BNSS
- Scope of revision against probation order
- No interference if discretion exercised judicially
Case Details
R/Criminal Revision Application No. 828 of 2017
Madansingh O. Barod for applicant, Rohan Raval (APP) for respondent State, Umang Oza for respondent Nos.2 and 3
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Nature of Litigation
Criminal revision application challenging the order of Sessions Judge granting probation to accused convicted for assault and other offences.
Remedy Sought
Quashing and setting aside the judgment and order dated 27.10.2016 passed by the learned Sessions Judge, Porbandar in Criminal Appeal No.29/2013, which extended benefit of probation to the accused.
Filing Reason
The applicant-complainant contended that the Sessions Judge erred in granting probation as the accused were habitual offenders with multiple cases.
Previous Decisions
The learned JMFC, Kutiyana convicted the accused in Criminal Case No.460/2011; the learned Sessions Judge, Porbandar partly allowed Criminal Appeal No.29/2013 and granted probation to accused Nos.1 and 2.
Issues
Whether the learned Sessions Judge erred in granting probation to the accused under the Probation of Offenders Act, 1958?
Whether the High Court should interfere in revision with the discretionary order of probation?
Submissions/Arguments
Learned counsel for the applicant submitted that the Sessions Judge misread the deposition and committed error in extending probation, as the accused are habitual offenders with many cases registered against them.
Learned APP for the State and learned counsel for the accused opposed the revision, submitting that the Sessions Judge did not commit any error and no interference is required.
Ratio Decidendi
The Sessions Judge exercised judicial discretion in granting probation under Section 4 of the Probation of Offenders Act, 1958, and the complainant failed to substantiate the claim of habitual offending. No interference in revision is warranted as the order is not perverse or illegal.
Judgment Excerpts
By way of this revision application under Section 397 (section 438 of BNSS) read with Section 401 (Section 442 of BNSS) of the Code of Criminal Procedure, 1973... the applicant – original complainant has prayed for quashing and setting aside the judgment and order dated 27.10.2016 passed by the learned Sessions Judge, Porbandar in Criminal Appeal No.29/2013, whereby, learned Sessions Judge, Porbandar has been pleased to partly allow the appeal and extended the benefit of probation to the original accused Nos.1 and 2 – respondents herein.
Having heard learned counsel for the respective parties and perusing the material placed on record, it appears that the respondents accused herein were put on trial... learned JMFC, Kutiyana has been pleased to convict the original accused No.1-
Procedural History
The respondents were convicted by the learned JMFC, Kutiyana in Criminal Case No.460/2011 for offences under Sections 323, 324, 504, 506(2), 114 IPC and Section 135 B.P. Act. They appealed to the Sessions Court, Porbandar (Criminal Appeal No.29/2013), which partly allowed the appeal and granted probation to accused Nos.1 and 2. The complainant then filed the present revision before the High Court.
Acts & Sections
- Code of Criminal Procedure, 1973: 397, 401
- Bharatiya Nagarik Suraksha Sanhita, 2023: 438, 442
- Indian Penal Code, 1860: 323, 324, 504, 506(2), 114
- Bombay Police Act, 1951: 135
- Probation of Offenders Act, 1958: 4
