SYED SALIM Vs. M J SIMON

JUDGEMENT

(1.) The petitioner filed a complaint C.C. 33/87 in the Court of the V Addl. Munsif Magistrate, Guntur, against the accused herein for offences punishable under sections 323, 342 and 506 read with Section 34, I.P.C. The first accused was working as Sub-Inspector and the second accused was working as Head Constable of Kothapeta Police Station in Guntur. The allegations in the complaint in brief are that one Ramesh Aggrawal occupied a room in the Hotel belonging to the complainants father on 28-1-1986 at about 4.45 p.m. and within a few minutes thereafter he informed at the counter that he lost some money in the room and immediately the complainants father gave a report to the police station at Kothapeta, Guntur. It is alleged that about 8 p.m. both the accused along with some constables took the complainant, his brother-in-law and some other employees of the Hotel to the police station. There the complainant was detained for three days by the accused and he was tied to a beam and then the accused and other constables beat him and he was threatened that unless he admits the offence he would be done away with. The learned Magistrate after considering the evidence adduced by the complainant and the defence evidence convicted both the accused under sections 342, 323 and 506 read with S. 34, I.P.C. But he released them after due admonition under Section 3 of the Probation of Offenders Act, 1958. The complainant filed this revision under Section 11(4) of the Probation of Offenders Act which reads as follows : "11(4) : When an order has been made under Section 3 or Section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law : Provided that the Appellate Court or the High Court in revision shall not inflict a graver punishment than might have been inflicted by the Court by which the offender was found guilty.

(2.) The learned counsel for the petitioner (complainant) contended that since the -accused was convicted under Section 506 of the I.P.C. and on the facts proved the offence falls under Part 2 of Section 506, I.P.C. where the punishment prescribed is imprisonment for a term which may extend to seven years, the Magistrate cannot exercise the jurisdiction under S. 3 of the Probation of Offenders Act. Section 3 of the Probation of Offenders Act reads that when any person is found guilty of having committed an offence punishable under Section 379 or 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4 release him after due admonition. The learned counsel for the respondent-accused has pointed out that the learned Magistrate in paragraph 22 of his judgment has stated that the offence under Section 506 read with Section 34, I.P.C. is punishable with imprisonment for a term which may extend to two years or fine under Section 506, I.P.C. and therefore he is convicted under Section 506, Part I, I.P.C. where the maximum punishment is imprisonment for two years or with fine or with both. Of course, the learned Magistrate did not say whether he has convicted them under Part I or Part II of Section 506, I.P.C. But even accepting the contention of the learned counsel for the respondent (accused) that the conviction under Section 506 is only under Part I and therefore there is nothing illegal in invoking the provisions of Section 3 of the Probation of Offenders Act, the further question to be considered is whether it is a fit case where the benefit of Section 3 of the Probation of Offenders Act can be given to the accused.

(3.) The learned counsel for the petitioner has pointed out that the evidence in this case shows that P.W. 1 and others were taken to the Kothapeta Police Station, Guntur by the accused who are the Sub-Inspector and the Head Constable and there the complainant was asked to admit the offence and threatened that if he does not admit the offence, they will see his end and then he was tied to a beam in a room in the police station and kept there for three days and beaten. It is, therefore, contended that this is not a case where the accused who have committed a serious offence are entitled to be let off with an admonition under Section 3 of the Probation of Offenders Act. It is also pointed out that A1 is aged about 44 years and A2 about 38 years.