1. R. S. Prabhu, the petitioner herein, being aggrieved by the inadequacy of the sentence imposed on the accused by the Sessions Judge, Lakshina Kannada in Criminal Appeal No. 105 of 1979, has preferred this revision.
2. The appeal before the Sessions Judge had arisen out of the judgment dated 31-10-1979 of the Additional Munsiff &. J.M.F.C., Udupi in C.C. No. 1042 of 1975 on his file.
3. That was a case in which, on the complaint of this Prabhu, the police of Hiriadka had charge-sheeted the accused-respondents 1 to 4 herein for offences under S. 325 read with S. 34, Penal Code.
4. The learned Magistrate, who had tried the accused on these charges, found each of them guilty for offences under S. 324 r/w S. 34, Penal Code, and sentenced them to suffer simple imprisonment for nine months. The learned Magistrate was also of the view that that was not a case in which he should extend the benefit of S. 360, Cr.P.C., 1973 (Code) to them.
5. In the appeal they had preferred the learned Sessions Judge, by his judgment dated 7-10-1980, while confirming the conviction recorded by the trial Court, gave to each of the accused the benefit of the Probation of Offenders Act and directed that they be released under S. 4 of the said Act on each of them executing a bond in a sum of Rs. 1,000/- with a surety for the like sum, to receive the sentence when called upon during the period of three years from the date of the judgment, with a further direction that in the meantime, they should keep peace and be of good behaviour.
6. In this revision, Prabhu contends that the accused having waylaid him, had assaulted him, caused him grievous hurt which had resulted in fractures and made him disabled and, therefore, the Court below should not have dealt with these persons so leniently.
7. Before examining the case of Prabhu on merits, one preliminary question which was raised at the Bar, has to be resolved. The question is can this Court, exercising its revisional jurisdiction at the instance of the injured complainant, interfere with the order of the Court below giving to the accused the benefit of the Probation of Offenders Act, 1958 (the 'Act').
8. Under S. 397 of the Code, this Court may call for and examine the record of any proceeding of an inferior criminal court for purpose of satisfying itself 'as to the correctness, legality or propriety of any finding, sentence or order recorded or passed ............' Section 401 of the Code, which deals with the powers of revision, says that in a revision preferred under section 397 or in the case of a proceeding which otherwise comes to its knowledge this Court, in its discretion, may exercise any of the powers conferred on a court of appeal by Sections 386, 389, 390 and 391 or on a Court of Session by S. 307. The only bar that is placed on the revisional powers of this Court under S. 397 read with S. 401 of the Code is that this Court cannot 'convert a finding of acquittal into one of conviction'.
9. So far as the powers of this Court to enhance the sentence imposed by a court subordinate to it exercising its revisional powers are concerned, reference may be made to (i) Nadir Khan v. The State (Delhi Administration) ( : 1976CriLJ1721 and Bachan Singh v. State of Punjab : 1980CriLJ211 . The observations in Nadir Khan's case may be noted :
'The fact that the new Code of Criminal Procedure has expressly given a right to the State under S. 377, Cr.P.C., to appeal against inadequacy of sentence which was not there under old Code, does not exclude the revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court. The Supreme Court will be slow to interfere with exercise of such discretion under Art. 136 of the Constitution. Section 401 read with S. 386(c)(iii), Cr.P.C., are clearly supplemental to those under Sec. 377 whereby appeals are provided for against inadequacy of sentence at the instance of the State Government or Central Government as the case may be.'
On this aspect Bachan Singh is on similar lines.
9-A. Even if the order of the court below, giving to the accused the benefit of the Act, does not amount to the imposition of any sentence on them, the very order applying the provisions of the Act to the accused, can be revised by this Court exercising its powers of revision. As observed in Nadir Khan (Para 5) 'S. 401 expressly preserves the power of the High Court, by itself, to call for the records without the intervention of another agency and has kept alive the ancient exercise of power when something extraordinary comes to the knowledge of the High Court.' As further observed therein (at para 4) 'it is well known and has been ever recognised that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. The High Court, as an effective instrument for administration of criminal justice, keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo motu act where there is flagrant abuse of the law.'
10. In view of what is stated above it is clear that this Court does have powers in revision to interfere with and, if need be, modify the order of a court subordinate to it giving to the accused concerned the benefit under the Act. Apart from the power of revision under the Code, the Act itself has an enabling provision conferring appellate revisional powers to modify an order made by the subordinate Court under the Act. Section 11 sub-section (4) provides that 'the appellate court or the High Court, in the exercise of its power under revision, may set aside' an order made by a Court subordinate to them under S. 3 or S. 4 of the Act and that in lieu thereof sentence such offender according to law.
11. Now to examine the petitioner's case on merits. In this connection, besides hearing the learned counsel for the petitioner and the Govt. Pleader, I have also perused the records. The four accused in the case who are respondents 1 to 4 herein, though notified of this revision have remained absent.
12. The trial court, on a consideration of the evidence let in before it, has held that the prosecution has been able to establish the fact that these accused had assaulted and caused hurt to the victim waylaying him, while he was proceeding to the weekly bazaar, on the road. The Doctor, who had issued the certificate, was not examined by the prosecution in court on the ground that he had gone abroad. The accident register prepared by him was placed in the court and that accident register disclosed as many as 7 fractures on the hands and legs of the victim. However, the trial Court could not act on Ex. P. 5 or the wound certificate (Ex. P. 6) in the absence of the supporting evidence of the witness who had prepared the same. Therefore, relying on the other evidence and, in particular, the evidence of the victim, the court below held that these accused were guilty under S. 324 and not under S. 325, I.P.C., as charged. The learned Sessions Judge has confirmed the finding of the trial Court that these accused were guilty under S. 324, I.P.C.
13. The motive for this crime, as found in the F.I.R., is : that the victim, in those days, used to cultivate the land of one Kusuma Shedthi as a tenant; and that these accused, in order to threaten him and prevent him from cultivating that land, had assaulted him thus.
14. I have carefully examined the records. The accused had waylaid PW 1 and had assaulted him. Due to the assault he had sustained many injuries and had undergone a great suffering. After taking into consideration all these facts and circumstances I am of the view that the learned Sessions Judge has erred in giving to the accused the benefit of S. 4 of the Act.
15. Now, about the sentence. As already stated though notified of this revision, none of the accused have appeared in court. It may be noted that this revision, of which they have had notice, is for enhancement of sentence. Even if the accused have remained absent and do not make any submission in the matter this court, in the circumstances of the case, using its discretion, has to find out what may be the appropriate sentence.
16. The occurrence is said to have taken place on 21-4-1975, more than nine years, ago. At this distance of time it may not be desirable to pass any sentence of imprisonment. Instead, sentencing each of them to pay fine would, according to me, meet the ends of justice.
17. Therefore, for the reasons stated above, this revision is allowed. The order of the Sessions Judge in Crl. Appeal No. 105/79 dated 31-10-1979 releasing these accused acting under S. 4 of the Act is hereby set aside. Each of these accused (respondents 1 to 4 herein) is sentenced to pay a fine of Rs. 500/- and, in default to pay the said fine, to suffer R.I., for two months. If the amount of fine is recovered, the entire sum shall be paid to the victim - the complainant - as compensation for the injuries sustained by him. Respondents 1 to 4 herein (accused) are hereby granted time till the end of February, 1984 to deposit the fine amount in the trial court. The trial Court will communicate the operative portion of this order to the accused.
18. Let a copy of this order be transmitted to the Courts below in three weeks time along with the records.
19. Revision allowed.