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Chandrakant Laxman Barate and ors. Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1978CriLJ72
AppellantChandrakant Laxman Barate and ors.
RespondentThe State of Maharashtra
Excerpt:
.....the circumstances and induce the trial judge as well as the appellate court to give benefit of the probation of offenders act. 4(1) when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on hs entering into a bond, with or without sureties, of appear and receive sentence when called upon during such period,..........of natural justice have been violated in the trial as well as in the appeal courts. in the appeal the accused was represented by a lawyer of his choice and the trial was conducted with vigorous cross-examination and the appeal was fully argued. it wag entirely different that at no stage the question about the age was ever raised in the light of the provisions of the probation of offenders act. however, according to mr. nerlekar the omission to follow these provisions amounts to abuse of the process of the court and the ultimate pronouncement is one without jurisdiction. we find it difficult to accept such an argument. he had referred us to some english rulings from the administrative law but it is not necessary to refer to them' in detail. where a tribunal is not properly.....
Judgment:

Deshmukh, J.

1. This application raises the question of the inherent jurisdiction of this Court Under Section 482 of the Cr.PC

2. The three petitioners before the Court were original accused Nos. 2, 4 and 5 in the Sessions trial held in the Court of the Additional Sessions Judge in Sessions Case No. 156 of 1975. As many as 7 accused persons were tried for various offences Under Sections 302, 326, 324, 323 read with Sections 149 and 34 IPC Ultimately by his judgment dated 24-11-1975 the learned Additional Sessions Judge, Pune, convicted accused Nos. 2, 4 and 5 Under Section 325 read with Section 149 IPC as also Under Section 147 IPC Under the first head of charge a sentence of two years' R.I. was imposed along with a fine of Rs. 100/- or in default of payment of fine to suffer R.I. for one month. Under Section 147 IPC rigorous imprisonment for six months was imposed. Both the substantive sentences were to run concurrently.

3. In the appeal carried to the High Court, being Criminal Appeal No. 1000 of 1975, a Division Bench of this Court hearing the appeal found that there was not enough evidence to hold the unlawful assembly proved. The conviction Under Section 147 IPC was thus set aside. The conviction Under Section 325 read with Section 149 I. P. C, was altered to one Under Section 325 read with Section 34 IPC The sentence under this head of charge of two years' R.I. and a fine of Rs. 100/- or in default to suffer one month's R.I. was, however, confirmed.

4. After this the criminal trial ended before the Sessions Judge and the appeal filed by the accused persons was finally disposed of by this Court on 7th/8th Oct. 1976, present application was presented originally by accused Nos. 2 and 4 only. Subsequently with the permission of this Court, accused No. 5 was added as applicant. This application purporting to be Under Section 482 of the Cr.PC has been filed on Nov. 19, 1976.

5. In this application the petitioners point out that the age of accused No. 2 is 24, that of accused No. 4, 19 and that of accused No. 5, 18. These ages are taken from the record as the ages given by the accused themselves and noted by the jiudge. Two different arguments are addressed to us on the basis of these ages. One relates to Section 4 of the Probation of Offenders Act, 1958 in regard to accused No. 2 and the other relates to Section 6 of the same Act in regard to accused Nos. 4 and 5.

6. The main gist of this argument with reference to the provisions of the Probation of Offenders Act is that a certain procedure has been laid down by the provisions of that Act before the criminal court can impose substantive sentence upon accused persons. It is also argued that a procedure has to be observed and a certain hearing given to the accused person under the provisions of Section 235 Cr. P, C. before the Sessions Court convicting the accused person would pronounce the sentence. Admittedly these provisions are attracted where the conviction is under a section for which the punishment is neither death nor life imprisonment. Undoubtedly so far as the present accused are concerned, the only conviction being Under Section 325 IPC it is not a section for which either death sentence or imprisonment for life has been laid down as possible sentence. The maximum punishment Under Section 325 IPC is rigorous imprisonment for 7 years together with further possible liability to pay fine.

7. The undisputed facts as are apparent from the record are that after coming to the conclusion about the guilt of these accused persons, the learned Addl. Sessions Judge did not follow the procedure laid down by Section 235 Cr.PC This means that after pronouncing the accused persons guilty, no separate hearing as contemplated by that section was given at all. The accused persons were deprived of an opportunity to bring on record certain additional circumstances with a view to induce the Court to grant lighter punishment or to grant the benefit of the provisions of the Probation of Offenders Act. The sentence as passed by the trial Court is thus vitiated. It is also an obvious fact from the record that this question about the certain ages of accused Nos. 4 and 5, being below 21, was never pointedly argued before the trial Court. The learned trial Judge was not at all told that he should hold that the two accused are really below 21 years of age and that they are entitled to the benefit of Section 6 of the Probation of Offenders Act. It is only after following that procedure as also the procedure Under Section 235 Cr.PC that the Court could decide whether the benefit of Sections 3 and 4 of the Probation of Offenders Act should be made available to the accused, or it was a fit case where the substantive sentence ought to be imposed This he says is apparent from the record. In spite of the obvious error committed in the trial Court the appeal memo in the High Court does not refer to these irregularities nor does it pointedly raise the question of the ages of the accused Nos. 4 and 5 being below 21 and the consequent advantage that should be made available to them. Even in the arguments before the High Court when a Division Bench of this Court heard the appeal no reference was made to these points as is obvious from the judgment delivered by the learned Judges on 7th/8th Oct. 1976. The learned counsel for the petitioners admits that this may be so. However, according to him, the effect of the non-observance of these provisions is to render the judgment as one without jurisdiction or a non-existent judgment, which should be ignored by this Court end the appeal should be re-heard and appropriate orders passed. Such a course is being advised under the inherent powers of this Court under Section 482 Cr, P. C.

8. It is necessary to distinguish the cases of accused No. 2 from the case of accused Nos. 4 and 5. Accused No. 2 is obviously not below the age of 21. Section 6 of the Probation of Offenders Act is not attracted in his case. However, accused No. 2 is convicted under an offence not punishable with death or imprisonment for life. The provisions of Section 4 of the Probation of Offenders Act would thus be attracted. In that case, according to us, it was for the accused and his Counsel to place before the Court the circumstances and induce the trial Judge as well as the Appellate Court to give benefit of the Probation of Offenders Act. Mr. Nerlekar the Counsel for the petitioners however argued that even Under Section 4 of the Probation of Offenders Act it was the duty of the court to first come to the conclusion that it was not necessary to give the benefit of the Probation of Offenders Act to the accused and after coming to that conclusion alone a substantive sentence should be passed. He bases this argument upon the construction of the provision of Section 4(1) of the Probation of Offenders Act which he canvassed before us. We are unable to see any such obligation upon the court and are not inclined to accept the interpretation of Mr. Nerlekar. Provisions of Sub-section (1) of Section 4 are as follows:

4(1) when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good Conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on hs entering into a bond, with or without sureties, of appear and receive 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 behaviour:

provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, it any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.In our view the plain reading of the above section will show that certain conditions must exist before the benefit of the Probation of Offenders Act can be given to a convict who is above 21 years of age. The first requirement in that the offence committed should not be punishable with death or imprisonment for life. That requirement is undoubtedly being fulfilled in this case. The next condition is that having regard to the circumstances of the case including the nature of the offence and the character of the offender, the Court convicting the accused must come to the conclusion that it is expedient to release him on probation of good conduct. This is the second requirement. If these two requirements exist then notwithstanding anything contained in any other law for the time being in force, the Court may instead of sentencing him at once to any punishments, direct that he be released on his entering into a bond etc.

9. When the above is read as a whole it is obvious that the normal law of the land is that when a person is convicted of an offence, he is to be awarded appropriate sentence looking to the nature and circumstances of each case. However, when the offence is of a particular type and from the circumstance on the record, the court convicting the accused comes to a certain conclusion as mentioned above, then .the court will ignore this normal procedure of immediately pronouncing a sentence and will instead direct the release of the accused by entering into a bond etc. with or without surety. There are further detailed provisions as to the requirement of a surety and also a provision for supervision, if need be. The Court convicting the accused can undoubtedly take the view from the circumstances which are apparent from the record that it is necessary to give the benefit of Section 4 of the probation of Offenders Act. It is also possible that the Counsel defending the accused will impress upon the, court the circumstances and induce the court convicting the accused to take a view that it appears to be a fit case where the benefit of Section 4 of the Probation of Offenders Act should be given.

10. However, if the court, as in the present case, trying accused No. 2 finds him guilty Under Section 325 read with Section 34 and at once proceeds to pronounce the sentence we do not think that any illegality hag been committed nor the court has forgotten to discharge any statutory obligation imposed upon it. When the court does not form the opinion as required by Sub-section (1) of Section 4, it adopts the normal course of convicting the accused and pronouncing the sentence at once.

11. In the present case neither the trial court nor the Appellate Court has formed the opinion from the circumstances on the record that benefit of Probation of Offenders Act requires to be given t0 accused No. 2. The courts have, therefore, proceeded to convict him as well as pronounce the sentence. We think that petitioner No. 1, who is accused No. 2, had no locus standi at all to make such an application, even on the merits of the matter. This conclusion is arrived at without even considering whether such an application could lie to the same court which has convicted the accused earlier.

12. So far as accused Nos. 4 and 5 are concerned there is some substance in the grievance of Mr. Nerlekar that neither the provisions of Section 235 Cr.PC have been followed nor the procedure laid down by Section 6 of the Probation of Offenders Act has been observed. After holding these accused guilty they were not separately heard upon the sentence as required by Section 235. Three judgments of the Supreme Court were brought to our notice. One judgment relates to a case which was tried under the provisions of the old Code but the amended Code was almost in the offing. In E. Anamma v. State of A.P. : 1974CriLJ683 , the Supreme Court points out that under the procedural law as was available at that stage (before the coming into force of the new Criminal Procedure Code) the pronouncement of an adequate sentence was always a matter of some puzzle to the court. We do not have in this country sufficient sophisticated machinery to investigate and present before the Court not only the circumstances of the crime but circumstances of involvement of the criminal himself. The Supreme Court therefore felt that with the advancement of the science of penology which seems to have been taken into account by the new Code something could be done to give adequate importance not only to the crime but along with it to the criminal himself. This judgment merely indicated how the new procedure which was sought to be introduced by the emended Code wag welcome by the Judges of the Supreme Court.

13. In Musakhan v. State of Maharashtra : 1976CriLJ1987 , the Supreme Court merely reiterated the principles incorporated in Section 6 of the Probation of Offenders Act. However that section has been directly interpreted earlier in Mohamed Aziz v. State of Maharashtra : 1976CriLJ583 . It has been laid down that Section 6 contain an injunction as distinct from a discretion Under Section 3 or Section 4 not to impose a sentence of imprisonment on a person who is under twenty-one years of age and is found guilty of having committed an offence punishable with imprisonment other than that for life, unless for reasons to be recorded by it, it is satisfied that it would not be desirable to deal with him Under Section 3 or Section 4. This inhibition of power of the court to impose a sentence of imprisonment applies not only at the stage of trial court but also at the stage of High Court or any other Court when the case comes before it on appeal or in revision. For this conclusion the Supreme Court relies upon the provisions of Sub-section (1) of Section 11. It is therefore obvious that even though the point relating to the applicability of Section 6 was not raised before the Presidency Magistrate or the High Court, the Supreme Court in Appeal by special leave under Article 136 of the Constitution is bound to take notice of the provisions of that section and give its benefit to the accused-appellant.

14. These observations amply make it clear that where the provisions of Section 6 are attracted it is the duty of the court to follow the procedure laid down by that section and on the basis of the material that will be available on the record after following that procedure that the court has to make up its mind whether to deny the benefit of Sections 3 and 4 to a particular accused in spite of the fact that his age is below twenty-one years.

15. Similarly in the case of the procedure Under Section 235 Cr.PC what precisely is meant by the expression 'hear the accused on the question of sentence' was the subject matter of Santa Singh v. State of Punjab : 1976CriLJ1875 . The hearing under that section is not a mere formality nor is it confined to oral arguments only. If the Accused is so inclined he must be permitted to bring on record additional circumstances by leading evidence, if need be. The Supreme Court of course rushes to utter a warning that the provisions of Section 235 are not to be so implemented as to permit a protracted trial even after the guilt of the accused has been pronounced. However, a reasonable hearing, bearing in mind the spirit of that section, must be done and if evidence is led to bring on record additional circumstances that must be permitted to be led. They further observe that not to grant such an opportunity is not a mere irregularity which could be curable Under Section 465 of the Code. It is an illegality which would vitiate the sentence itself.

16. Having referred us to this case law Mr. Nerlekar's argument is that the non-observance of the provisions of Section 235 of the Code as also the provisions of Section 6 of the Probation of Offenders Act render the decision itself non-existent in law. At any rate it is clearly an unlawful decision. He further argued that the pronouncement of the sentence is one without jurisdiction and as such the High Court, which may be for the time being the same court that decided the appeal, can exercise powers Under Section 482 Cr. P.. C. That section merely saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. According to Mr. Nerlekar, the pronouncement of the sentence in the present matter is the result of the abuse of the process of the Court. It is also one without jurisdiction and the imposition of sentence upon the accused below 21 years of age is a clear illegality Under Section 6 of the Probation of Offenders Act,

17. If accused Nos. 4 end 5 are really below 21 years of ege, it does appear that the provisions of Section 235 of the Code and Section 6 of the Probation of Offenders Act have been completely forgotten by everyone concerned in the two courts. Neither the Counsel for the accused at any stage drew the attention of the court pointedly to these two provisions nor did it occur to the court itself to observe the provisions of Section 235 of the Code and Section 6 of the Probation of Offenders Act.

18. However, sitting at the same High Court which disposed of finally the earlier appeal concerned, we find two difficulties in our way. In the case where facts were very much similar to the present case, the matter reached the Supreme Court in the case of Yaduraj Singh v. State of U.P. : 1977CriLJ340 . In that case a statement made by the accused giving his age showed that on the relevant date for the purpose of Probation of Offenders Act he would be below 21 years. However, beyond that statement there was no other record to firmly establish his age nor was the point ever raised till the matter reached the Supreme Court, When the learned counsel appearing for the appellants argued before the Supreme Court that on Aug. 30, 1969, which was the relevant date, appellant Nos. 3 end 4 were less than 2l years of age and therefore the benefit of the Probation of Offenders Act ought to have been given to them, the Supreme Court observed as follows in para 2 of the report:

This contention was neither taken in the Sessions Court nor in the High Court. True, that this Court has taken the view that in appropriate oases such a contention may be entertained by this Court for the first time. But the difficulty in accepting the submission of the learned counsel i& that there is no credible evidence on the record showing that appellants 3 and 4 were less than 21 years of age when the offence was committed-Counsel say that those two accused had given their ages in their statements Under Section 342 Cr.PC and if the trial Judge doubted the correctness thereof, he could have had the two accused medically examined in order to ascertain their age, This seems to us a difficult burden for any trial Judge to undertake. The age given by the two accused in their statements had no special significance in the absence of a proper plea under the Probation of Offenders Act. The trial Court had therefore no occasion or reason to have the accused medically examined. Since there is no reliable evidence to show the true ages of appellants 3 and 4, we are unable to entertain the submission of the learned counsel.

19. We find that the position before Us is not only similar but almost identical cat The accused persons undoubtedly call themselves below 21 years of age while making a statement under Section 313 of the present Code but beyond that statement there is no other record to show that they are in fact below 21. Moreover no such plea has been raised either before the trial Court or before the Appellate Court. In the circumstances we are constrained to observe that the above quoted observations of the Supreme Court almost bodily apply to the facts and circumstances of the case. On this short ground alone, this petition could stand rejected.

20. The other difficulty that we are faced with is that the Criminal Appeal heard by this Court has been finally disposed of by a properly constituted Division Bench of this Court. Like civil matters there is no provision in the Code of Criminal Procedure to review one's own judgment. The request of the present petitioners to reopen the case for the purpose of considering the sentence is almost in the nature of a review application. this Court has no power of review. However, being conscious of that fact, the inherent powers of the Court Under Section 482 Cr.PC are sought to be invoked. Here also we find that the point is almost concluded and it is not possible to take a different view in the face of a well considered Division Bench judgment of this Court in A.H. Satranji' wala v. State of Maharashtra : (1972)74BOMLR742 . The facts before that Bench were slightly different. An appeal filed by the accused person was expected to be placed for hearing before the Bench of a single judge. However in due course the appeal appeared on the board of some other Judge. There was no defect in the preparation of the board or the notification of the appeal as is required under the rules. What appears to have happened is that the Counsel for the accused was expecting the appeal to be notified before a certain Judge and did not therefore see the board of another single Judge, When the matter was called out before the other Judge in due course, in the absence of the accused-appellant or his Counsel, the Judge heard the appeal on merits with the assistance of the Public Prosecutor and converted the judgment of acquittal into one of conviction. When the conviction warrant was served upon the accused he became aware that his appeal was heard and finally disposed of. He therefore made an application purporting to be Under Section 561-A of the old Code for the purpose of re-opening the appeal and hearing the accused.

21. The learned Judges took a review of a number of judgments including some Pull Bench decisions of the Allahabad High Court as well as this High Court. Their conclusion based upon the provisions of the Code as also the precedents is that when a criminal appeal is disposed of by a Bench having jurisdiction to do so and there is no violation of the principles of natural justice, the judgment and order disposing of the appeal is final end is not liable to be reviewed or interfered with by the High Court Under Section 561-A of the Cr.PC 1898, although the same might have been pronounced without the accused or his advocate being present either at the hearing of the appeal or at the time of the judgment end sentence. Under Section 561-A of the Code or otherwise there is no inherent power in the High Court to review of reconsider a previous judgment of the High Court in a criminal matter except where the previous judgment was pronounced without jurisdiction or in violation of the principles of natural justice or, possibly, in a case where it wad obtained by an abuse of the process of the court which would really amount to its being without jurisdiction.

22. Mr. Nerlekar argued that he would accept this judgment as laying down the correct law and still point out how he is entitled to ask for the reopening of the appeal. According to him, the provisions of Section 235 Cr.PC as also Section 6 of the Probation of Offenders Act are mandatory. If the mandatory provisions of these two Acts are violated the hearing and decision would be one without jurisdiction. He was not in a position to argue that principles of natural justice have been violated in the trial as well as in the appeal courts. In the appeal the accused was represented by a lawyer of his choice and the trial was conducted with vigorous cross-examination and the appeal was fully argued. It wag entirely different that at no stage the question about the age was ever raised in the light of the provisions of the Probation of Offenders Act. However, according to Mr. Nerlekar the omission to follow these provisions amounts to abuse of the process of the Court and the ultimate pronouncement is one without jurisdiction. We find it difficult to accept such an argument. He had referred us to some English rulings from the administrative law but it is not necessary to refer to them' in detail. Where a tribunal is not properly constituted, needless to add that the hearing and decisions given by such a tribunal would be without jurisdiction. That is not the case before us.

23. It cannot be said that the Addl. Sessions Judge or the Division Bench of this Court was not properly constituted. In fact since the charge-sheet was Under Section 302 IPC the only Court which was competent to hear the trial was a Court of Session. That was done. In the same manner this being a certain type of conviction the only competent appellate Court was a Division Bench of this Court and a Division Bench has heard the appeal. To say that the judgment or the pronouncement of the sentence suffers from some illegality and is therefore vulnerable before the higher court, is entirely different from saying that the judgment itself is without jurisdiction. In fact the legislature being conscious that courts would commit mistakes a hierarchy of courts has been provided. The mistakes committed by an inferior court are liable to be corrected by superior courts. The mistakes could be of fact as well as law. The mistakes could also be in the improper exercise of the jurisdiction and such mistakes are correctable by higher appellate Tribunal. We therefore find it difficult to accept that the decision itself is without juries diction simply because some provisions of low were not present in the mind of the court, as perhaps they were never argued before both the Tribunals.

24. In the absence of power of review and on the basis of the fact that properly constituted courts with jurisdiction have disposed of the matter of these accused persons, a situation does not arise that the decisions themselves are without jurisdiction. It is not competent for this Court to interfere with those judgments and to set aside either the whole or part of it relating to the sentence pronouced. The only remedy appears to be to approach a higher court if the accused feel that their appeal , hag been wrongly decided by the High Court and that injustice is done to them.

25. For all the reasons stated above, we do not think that this petition could be entertained by us, We accordingly reject it.

26. Rule discharged with no order as to costs.

27. The accused will surrender to their bail.


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