PATEL LAVJIBHAI KESHABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) AGGRIEVED by the judgment and order of conviction passed by learned Additional Sessions Judge, Fast Track Court No.2, Gandhinagar in Criminal Appeal No.18 of 2003, confirming the judgment and order dated 20.11.2003 passed in Criminal Case No.1055 of 1993 by the learned Judicial Magistrate, First Class, holding the petitioner, who is now aged about 82 years, guilty of theft of electricity under Section 39 of the Indian Electricity Act and sentencing him to undergo simple imprisonment for a period of two years with fine of Rs.2,000/ -, failing which additional sentence of six months, the petitioner is before this Court in the revision application.

(2.) THE only point canvassed by learned counsel for the petitioner during the course of the argument is that though both the courts below were vested with the powers respectively under Section 4 of the Probation of Offenders Act ( for short 'the Act') as well as Section 360 of the Code of Criminal Procedure ( for short Cr.P.C.'), they failed to exercise such powers in case of a person aged 75 years, in absence of any allegation with regard to his antecedent in respect of the offence of the similar nature. Learned counsel for the petitioner invited attention of this Court to Section 4 of the Act as also Section 360 of Cr.P.C., and submitted that the said provision does not bar its applicability in case of the offences punishable under the provisions other than the Indian Penal Code. He submitted that therefore this is a fit case where both the courts below ought to have exercised the statutory powers.

(3.) LEARNED APP has fairly conceded that such statutory powers were available and were meant to be exercised by the courts below in the facts and circumstances of this case. Section 360 of Cr.P.C., inter -alia, contemplates the benefit of probation to be conferred upon the accused, not being under the age of 21 years and is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less. There is no dispute that the accused was aged 75 years at the time of the sentence and was not under the age of 21 years as on the date of lodging of the complaint. It is also not in dispute that under Section 39 of the Electricity Act, the accused has been sentenced to suffer simple imprisonment for two years. Therefore, this Court finds that provisions of Section 360(1) of Cr.P.C., were squarely applicable to the facts of the case. The court below, however, reasoned that, since the offence does not fall in any of the provisions of Indian Penal Code, Section 360 of Cr.P.C. was not invokable. This Court is unable to find any such limitation in Section 360 of Cr.P.C, and neither the learned APP is able to show any such limitation. Therefore, the reasoning given by both the courts below cannot with stand scrutiny of law.