BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/11/2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.R.C.(MD)No.371 of 2012 Jaisankar ... Petitioner Vs State rep. by The Inspector of Police Aykkudi Police Station, Tirunelveli District Crime No.141 of 2008 ... Respondent PRAYER Criminal Revision Petition filed under Sections 397(1) read with and 401 of Cr.P.C., to call for the records and set aside the judgment dated 04.01.2012 passed in Crl.A.No.126 of 2011 on the file of the Additional Sessions Judge, Fast Tract Court No.II, Tirunelveli confirming the conviction dated 24.05.2011 imposed in C.C.No.11 of 2009 on the file of the Judicial Magistrate, Shencottai and acquit the petitioner. !For Petitioner ... Mr.A.Thiruvadikumar ^For Respondents ... Mr.P.Kandasamy Govt Advocate (Crl.Side) :ORDER
The Petitioner/Appellant/Sole Accused has focused the present Criminal Revision Petition as against the judgment dated 04.01.2012 in C.A.No.126 of 2011 passed by the Learned Additional Sessions Judge/Fast Track Court No.II, Tirunelveli, confirming the judgment of conviction dated 24.05.2011 in C.C.No.11 of 2009 passed by the Learned Judicial Magistrate, Shencottai.
2.The Learned Additional Sessions Judge/Fast Track Court No.II, Tirunelveli, while delivering the judgment in C.A.No.126 of 2011 on 04.01.2012, has found the Revision Petitioner/Accused guilty under Sections 341, 294(b) and 506(ii) of I.P.C., but, after taking into consideration the nature of the circumstances of the present case and the family circumstances of the Revision Petitioner/Accused and also with a view to provide one opportunity to mend himself, instead of awarding punishment to the proved charges, released him under Section 3 of the Probation of Offenders Act, 1958, after admonishing him and resultantly discharged him from the case.
3.According to the Learned counsel for the Petitioner/Appellant, both the Courts below have committed an error in convicting the Petitioner/Accused, when the basic ingredients of Sections 294(b), 341 and 506(ii) of I.P.C. have not been made out.
4.It is the submission of the Learned counsel for the Petitioner/Accused that the interested testimonies of P.Ws.1 and 2 bristles with material contradictions and both the Courts below have not appreciated the evidence let in in the case in a proper and real perspective.
5.Yet another contention of the Learned counsel for the Petitioner/Accused is that P.Ws.1 and 2 have been inimical towards the Petitioner/Accused and there is no evidence to corroborate their version. Moreover, the other witnesses viz., P.Ws.3,4 and 6 are all relatives of P.Ws.1 and 2 and therefore, all the Witnesses examined by the prosecution are interested witnesses.
6.The Learned counsel for the Petitioner/Accused urges before this Court that P.W.1 has admitted tacitly that the complaint has been prepared after deliberation and consultation and therefore, there is a delay in lodging the complaint.
7.Drawing the attention of the evidence of P.Ws.1 and 2 that their evidence would go to show that witnesses have not deposed to the effect that they felt annoyed on hearing of obscene words uttered by the Petitioner, the Learned counsel for the Petitioner contends that in order to attract the offence under Section 294(b) of I.P.C., mere utterance of obscene words are not enough and sufficient and also there must be a further proof to prove that it has been meant to annoy others.
8.The Petitioner/Accused takes a plea that neither in the complaint nor before the Court, P.W.1 deposed that he felt threaten on the intimidation made out by the Petitioner/Accused and in the absence of threat being a real one, mere utterance of the words does not attract the provisions of Section 506(ii) of I.P.C.
9.The Learned counsel for the Petitioner/Accused submits that the case of the defence is that the present complaint has been lodged only to harass the Father of P.W.2 and the same is fortified by the demands made by P.Ws.1 and 2.
10.Lastly, the Learned counsel for the Petitioner/Appellant projects an argument that as per Section 12 of the Probation of Offenders Act, 1958, the Petitioner/Accused would not suffer any disqualification, but the same has not been incorporated in the judgment of the Courts below. In this regard, it is the contention of the Learned counsel for the Petitioner/Accused that taking advantage of the same, P.W.1 has been sending representation to the Railways Department (where the petitioner is employed) with a view to loose his job pursuant to the verdict of the Courts below and therefore, the Petitioner has approached this Court for a clarification of the judgment of the Trial Court.
11.In response, it is the submission of the Learned Government Advocate (Criminal Side) that both the Trial Court as well as the Appellate Court have analysed and scrutinised the available oral and documentary evidence on record and instead of punishing the Petitioner/Accused after finding him guilty under Sections 341, 294(b) and 506(ii) of I.P.C., has taken into account of the nature and circumstances of the present case, also taken into account of the family circumstances of the Petitioner/Accused and with a view to provide an opportunity to mend his ways, instead of awarding the punishment, granted benefits as per Section 3 of the Probation of Offenders Act, 1958, thereby discharged him from the case.
12.On perusal of the Trial Court judgment in C.C.No.11 of 2009 dated 24.05.2011, it is clear that both the Petitioner/Accused and his wife, based on difference of opinion, have been residing separately and L.W.No.5 and the Petitioner/Accused's Mother among with witness No.1 have been asked to unite both of them and that the witness No.1 raising his voice united the Petitioner/Accused and this has not been liked by the Petitioner/Accused, who talked with witness No.1 over phone as to how, he can interfere in the family and that he is keeping his wife and in that circumstances, on the day of occurrence, in the common place, Witnesses Nos.1 and 2 have been waylaid by the Petitioner/Accused, who has spoken indecent words against them and also intimidated them with murder. Therefore, as against the Petitioner/Accused, a case has been registered under Sections 341, 294(b) and 506(ii) of I.P.C.,
13.It is the evidence of P.W.1 that on 21.10.2008 at about 12.45 p.m., he along with his wife Rajeswari have been proceeding in a two wheeler from Vasudevanallur to Tenkasi and when they have come near Kuthukalvalasai Spectrum School, they have been waylaid by the Petitioner/Accused in a motorcycle and they have stopped their motorcycle. Also, it is the evidence of P.W.2 (wife of P.W.1) that the Petitioner/Accused has waylaid her and her husband P.W.1 on the date of occurrence and at the same time and at the same place. P.W.1 has also deposed that the occurrence have been witnessed by one Murugesan and Chelladurai.
14.Murugesan as P.W.3 in his evidence has deposed that on 21.10.2008 at about 12.45 p.m. (in the afternoon), he along with his brother have come in a motorcycle from Keelaputhur to Tenkasi and when they reached Kuthukalvalasai near Spectrum School, the Petitioner/Accused has waylaid his brother Ponnusamy/P.W.1 as to how he can make promise in his family. Though P.W.2 is the wife of P.W.1 and P.W.3 is the brother of P.W.1 and they are interested witnesses as relatives, yet they have reminded the scene of occurrence. As such, it is latently and patently clear that the offence against the Petitioner/Accused has been proved beyond all reasonable doubts as per Section 341 of I.P.C.
15.Coming to the charge in respect of an offence under Section 294(b) of I.P.C., it is to be pointed out that P.W.1 in his complaint/Ex.P1, has stated that the Petitioner/Accused has stated that "today you escaped and I will not leave without murdering you". Also, in Ex.P1 complaint, P.W.1 has uttered that since he and his wife have been scolded by the Petitioner/Accused in a public place, their reputation got affected etc. P.W.1, also in his evidence has stated that the Petitioner/Accused has spoken ill of him in indecent/filthy words by stating as to why he united the Accused and his wife and also he intimidated him that he will not leave without murdering him and therefore, he got scared and dishonoured. P.W.2 also has deposed in the same fashion as that of P.W.1 in regard to the obscene words uttered by the Petitioner/Accused and also about the intimidation made by him and as such because of his conduct, herself and her husband have been affected mentally.
16.P.W.3 in his evidence has stated that the Petitioner/Accused has waylaid his brother Ponnusamy and asked him as to how he can effect the compromise and by so saying has taken a knife from his hip and threatened his brother that he will stab him. Here again, from the evidence of P.Ws.1 to 3, on the date of occurrence, the Petitioner/Accused has scolded P.Ws.1 and 2 in a common/public place in indecent/obscene words and therefore, the offence under Section 294(b) of I.P.C. levelled against the Petitioner/Accused has been proved beyond all reasonable doubt in the considered opinion of this Court.
17.Coming to the charge in respect of the offence under Section 506(ii) of I.P.C., it is the evidence of P.W.1 that in Ex.P.1 complaint, he has stated that the Petitioner/Accused will not leave without murdering him and in this regard, he has threatened like that and as such, he got scared etc., Because of the Petitioner/Accused's conduct, P.W.1 has stated in his evidence that he got scared.
18.P.W.2 has also in her evidence has stated that the Petitioner/Accused has removed knife from his hip and threatened by uttering the words that he will not leave without murdering P.W.1 and as such, she has been affected mentally. P.W.3 has also stated in his evidence that the Petitioner/Accused has threatened to stab P.W.1, by removing knife from his hip. As such, it is crystal clear that the Petitioner/Accused has shown the knife and threatened P.W.1, which in turn has created some kind of scared feeling and therefore, in view of the cogent, coherent, unimpeachable and unassailable evidence of P.Ws.1 to 3, this Court unhesitatingly come to the conclusion that the offence in respect of 506(ii) I.P.C levelled against the Petitioner/Accused has been proved beyond all reasonable doubts.
19.On going through the judgment of the Trial Court, it is quite clear that the Petitioner/Accused has been found guilty under Sections 341, 294(b) and 506(ii) of I.P.C. But, it has taken into account the nature and circumstances and the family circumstances of the Petitioner/Accused and also with a view to provide one more opportunity to mend himself instead of awarding punishments for the proved offences, it granted benefits as per Section 3 of the Probation of Offenders Act, 1958, by admonishing him and resultantly, discharged him from the case.
20.In the Appeal in C.A.No.126 of 2011 on the file of the Learned Additional Sessions Judge/Fast Track Court No.2, Tirunelveli, the Appellate Court, after contest, has come to the resultant conclusion that there is no scope to interfere with the conviction and rendered by the Trial Court and instead of sentencing him has admonished him as per Section 3 of Probation of Offenders Act, 1958 and discharged him from the case thereby upheld the judgment of the Trial Court.
21.The main submission of the Learned counsel for the Petitioner/Accused is that Section 12 of the Probation of Offenders Act, 1958, would point out that the Petitioner/Accused would not suffer any disqualification, but, the said disqualification has not been incorporated in the judgment of the Courts below in C.C.No.11 of 2009 dated 24.05.2011 and C.A.No.126 of 2011 dated 04.01.2012.
22.The Learned counsel for the Petitioner/Accused submits that the Petitioner/Accused is employed in the Railways Department and since P.W.1 has been sending representation to the Railways Department and the Petitioner will loose his job in view of the judgment delivered by the Courts below.
23.At the outset, this Court, on going through the judgment of the Trial Court in C.C.No.11 of 2009 dated 24.05.2011 and the judgment of the Appellate Court dated 04.01.2012 in C.A.No.126 of 2011, opines that they do not suffer from any serious impropriety or illegality in the eye of law. As such, this Court is in complete agreement with the view rendered by the Trial Court as well as the Appellate Court, releasing the petitioner/Accused under Section 3 of the Probation of Offenders Act, 1958 instead of awarding punishment for the proved offence under Sections 341, 294(b) and 506(ii) I.P.C.
24.It is to be pointed out that an order of release on Probation came into existence only after the Accused is found guilty and is convicted of the offence, therefore, the conviction of the Petitioner/Accused or the finding of the Courts below that he is guilty cannot be washed out because that is the sine qua non for the order of release on probation of the offender. The order of release on probation is in the nature of substitution of the sentence to be imposed by the Court. This is permissible by the statute with a human approach in order to reform youthful offenders and to prevent them from becoming hardened criminals as per the decision of the Hon'ble Supreme Court in Divisional Personal Officer Vs. T.R.Challapan, - AIR 1975 SC 2216.
25.The circumstances under which the offences have been committed are relevant facts for the grant of benefit of probation. As per decision in 1996(2) Madras L.W. (Cri.) 572.
26.It is also to be pointed out that the very object of the Probation of Offenders Act, is to avoid imprisonment of the person covered by the Provisions of the Act. In fact, Section 3 and 4 of the Act, only make provisions for substituting the sentence imposed by a Court of Law and they do not affect the order of conviction, as opined by this Court.
27.An order passed under the Probation of Offenders Act, 1958, directing the release of a person with an admonition cannot be said to be punishment. It is not one of the modes of punishment described in Section 53 of the Indian Penal Code. Under Section 3 of the Probation of Offenders Act, 1958, something which is not punishment is substituted for sentence imprisonment or fine as per decision in Baba V. Emperor AIR 1924 Nagpur Page 37 at special Page 38. Further, the first offender may be of advanced age as per decision in Crown V. Salimi - 11/P.R. 1916 P 21.
28.Indeed, the Probation of Offenders Act, 1958, has been enacted with an emphasis on the reformation and rehabilitation of the Offenders as a useful and self-reliant members of society without subjecting them to deleterious effects of jail life. In the decision Sarangadhar Nayak and Others Vs. State of Orissa
- I(2001) CCR 186, it is held that as the conviction under Section 506 of I.P.C. is set aside, the benefit of the probation of offenders Act should be granted in favour of the petitioners. If the offence is trivial in nature, the Court below can be lenient in granting the benefit under Probation of Offences Act, 1958, as per the decision of the Hon'ble Supreme Court in State of Karnataka Vs. Kohamed Nazeer - 2003(SCC) (Crl.) 556.
29.Where the Accused is a Government Servant and is likely to loose the job by imprisonment, the benefit of the provisions of the Act can be given to him as per decision Rajbir Vs. State of Haryana - AIR 1985 SC 1278.
30.At this stage, this Court aptly point out the decision of the Hon'ble Supreme Court in Mani Singh Vs. State of Bihar and Others - 2001 (3) CRIMES 383 (2) (SC), the Appellant being a Government servant and the conviction under Section 379 I.P.C and 27 of Arms Act would harm him with serious consequences including dismissal from service and held that benefit of probation with conditions can be given to him. It is true that the benefits stated under Sections 3 and 4 of Probation of Offenders Act, 1958, are subject to the limitations prescribed therein and that the word 'may' in Section 4 of the Act is not be understood as per the decision in Nilgiris Bar Association Vs. T.K.Mahalingam - AIR 1998 SC 398.
31.No wonder, Section 4 of the Act deals with the power of Courts below to release certain offenders on Probation of good conduct. The non-obstante clause in Section 4of the Act is a clear manifestation of the intention of the legislature that the provisions of the Act would have effected notwithstanding any other law for the time being force, as per decision Ramjani Vs. State of Rajasthan, 1983 (1) Crimes 1063.
32.At this stage, this Court to promote substantial cause of justice cites the following decisions:
(a)In the decision of the Hon'ble Supreme Court in Additional D.I.G. Of Police, Hyderabad V. P.R.K.Mohan - 1998 Supreme Court Cases (Cri) 206 at page No.207 in paragraph No.2 4 and 5, it is laid down as follows:
"4.It is settled law that Section 12 of the Probation of Offenders Act, 1958 does not preclude the department from taking action for misconduct leading to the offence or to his conviction thereon as per law. The section was not intended to exonerate the person from departmental punishment. It was clarified: the section only directed that the offender shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. Such law in the context is other law providing for disqualification on account of conviction. This Court, therefore, held that merely because a sentence of imprisonment has been substituted by an order passed under Section 12 of the Probation of Offenders Act, 1958, the effect of the conviction is not obliterated altogether and it would be open to the authorities to take departmental proceedings on the basis thereof ( see Union of India V. Bakshi Ram
- (1990) 2 SCC 426 : 1990 SCC (L&S) 288 : (1990) 12 ATC 914). Therefore, the observation of the appellate court on the interpretation of Section 12 is not correct.
5.But the learned Single Judge as well as the Division Bench while setting aside the order of punishment observed that the authorities/department will not be precluded from taking appropriate disciplinary action against the delinquent. Since we have clarified the law on the subject, the only thing left for the authorities would be to consider the effect of the modification in the order of sentence from imprisonment to probation and pass a fresh order whether under Section 12 of the CRPF Act or dehors that provision. We do not think it necessary to interfere as we have indicated the scope of the fresh order to be passed by the authorities. We dispose of this appeal accordingly with no order as to costs."
(b) In the decision of the Hon'ble Apex Court in AIR 1990 Supreme Court 987 at special page 988, it is observed thus:
"In criminal trial the conviction is one thing and sentence is another. The departmental punishment for misconduct is yet a third one. The Court while invoking the provisions of S.3 and 4 of the Act does not deal with the conviction; it only deals with the sentence which the offender has to undergo. Instead of sentencing the offender, the Court releases him on probation of good conduct. The conviction however, remains untouched and the stigma of conviction is not obliterated. In the departmental proceedings the delinquent could be dismissed or removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge; S.12 of the Act does not preclude the department from taking action for misconduct leading to the offence or to his conviction thereon as per law. The Section was not intended to exonerate the person from Departmental punishment. Case law discussed."
(c) In the decision in Om Parkash V. The Director, Postal Services (Posts and Telegraphs Deptt.) Punjab Circle, Ambala and others (FB) - AIR 1973 Punjab and Haryana 1, it is held as under:
"Section 12 removes a disqualification attaching to a conviction. To disqualify a person for a particular purpose means to deprive that person of the qualities or conditions necessary to make him for for that purpose. Disciplinary proceeding cannot be called a disqualification, but is at best a liability incurred in certain circumstances.
Departmental proceedings are not taken because the man has been convicted. The proceedings are directed against the original misconduct of the Government servant. Only the procedure varies in a case where the necessity of a formal inquiry into the allegations of misconduct is rendered unnecessary on account of such an inquiry having been held by a criminal Court on the basis of a much higher standard of proof requisite for the conviction of an accused. Section 12 does not wash away the misconduct of the Government servant. No part of Section 12 is intended to exonerate a Government servant of his liability to departmental punishment for misconduct.
If an appointing authority holds that a person who has been dealt with under Sec. 4 of the Act is disqualified from being appointed to a particular service on account of his conviction, such an order is liable to be set aside because of the provisions of Section 12. But in absence of any rule to the contrary mere conviction of a Government servant by a criminal Court does not per se disqualify him from continuing to hold the post. (1967) 69 Punj. LR 331; Overruled; AIR 1970 Delhi 240, Dissented from; 1957 Cr.L.J.255 (Mad) and (1963) 1 Lab LJ 49 (Mad) and AIR 1969, Andh. Pra 371 and 1971 Lab IC 823 (Madh Pra), Followed."
33.In the light of overall assessment of the facts and circumstances of the case in an integral fashion, this Court comes to an inevitable conclusion that both the Courts below have found the Petitioner/Accused guilty of the offences under Sections 341, 294(b) and 506(ii) of I.P.C., but, has not awarded punishment and instead of, it conferred the benefit Section 3 of the Probation of Offenders Act and released after admonishing him.
34.Viewed in that perspective, on the basis of the peculiar facts and circumstances of the case and taking note of the fact that the Petitioner/Accused is aged about 47 years, this Court holds that the finding of guilt rendered by both the Courts in respect of the Petitioner/Accused for the offence under Sections 341, 294(b) and 506(ii) I.P.C and instead of awarding the punishments releasing him after admonition under Section 3 of Probation of Offenders Act, 1958 would not effect his service in the Railways Department (where he is employed), inasmuch as the aim of the Probation of Offenders Act is one of rehabilitation and reformation of the offender.
35.With these observations, this Criminal Revision Petition is disposed of.
1.The Additional Sessions Judge, Fast Track Court No.II, Tirunelveli.
2.The Judicial Magistrate, Shencottai.
3.The Inspector of Police Aykkudi Police Station, Tirunelveli District