RAGHU MALLIK AND ANR. Vs. STATE

JUDGEMENT

(1.) THIS is an application under Section 561 -A, of the Code of Criminal Procedure to remit the substantive sentence of R.T. passed against the Petitioners by the judgment of this Court in Criminal Revision No. 486/67, and to release them after admonition or on probation of good Conduct under Sections 3 or 4 respectively of the Probation of Offenders Act, 1956, (herein after referred to as the Act).

(2.) IT has been decided by a Division Bench of this Court in Criminal Misc. No. 178/66 that this Court in exercise of its inherent power under Section 561 -A, Code of Criminal Procedure has the jurisdiction to review, recall or modify its previous decision in a criminal revision when it is necessary for securing the ends of justice; for preventing abuse of the process of the Court; and/or to give effect to any order under the Code of Criminal Procedure. The Petitioners in this application pray for the remittance of the sentence passed against them on the basis of the provisions of Sections 3 and 4 of the Probation of Offenders Act, on the ground that it would meet the ends of justice in this particular case. Mr. Dhal, the learned Standing counsel, fairly concedes that this Court has jurisdiction to entertain such a petition.

(3.) MR . Sahu, the learned Counsel for the Petitioners in the aforesaid revision, raised various contentions during the hearing of the criminal revision, which were 8011 dealt with and discussed in my judgment delivered in the said revision. In para 8 of the said judgment Mr. Sahu 's last submission, mentioned as such, for the reduction of the sentences passed by the Courts below against the Petitioners, was considered, and the same were reduced as stated above. The prayer for ' the application of the provisions of the Probation of Offenders Act in favour of the Petitioners was not at 8011 mentioned in any manner in the above mentioned revision petition, and was not urged in course of the bearing of the revision, as otherwise that matter would have been dealt with and disposed of before taking up the question of the reduction of the sentence. Moreover this question was not taken up before the trial Court and also in the appellate Court, as there is no discussion or consideration of this aspect of the matter in the judgment of both the Courts below, and there is no mention of the same in the grounds taken in the memorandum of appeal. The Additional Sessions Judge dealt at length the various ,aspects of the case which were urged in appeal, and be specifically mentioned in the penultimate paragraph that "The above were the only points that were urged before me in this appeal and they have been answered in the way as stated above. "From all these it is quite evident that the Petitioners and/or their counsel, at all the three above mentioned stages, never considered this to be a fit case where they could legally ask for the application of the provisions of the Act in favour of the Petitioners. As the relief now sought for was never prayed for in both the Courts of fact and in revision in this Court, I do not have before me any report from the concerned Probation Officer. There is nothing on record as to whether the Petitioners have a fixed place of abode or regular occupation at a particular place where they are likely to live during the period of their release if at all on Probation, and/or about the character of these offenders under Section 4 both the above factors, and under Section 3 the later one are imperative considerations for the passing of an order under the said sections. Thus it is not possible for me at this stage to legally pass an order in accordance with the provisions of the said sections of the Act.