HARJINDER SINGH Vs. THE STATE OF PUNJAB

JUDGEMENT

(1.) THIS order will dispose of Criminal Revisions Nos. 364 to 366 of 1977, which are at the instance of one Petitioner, namely, Harjinder Singh against whom three trials were conducted which resulted in three separate convictions each under Section 409 of the Indian Penal Code and three consequential sentences thereunder.

(2.) IN Criminal Revision No. 364 of 1977, the offence is stated to have been committed on 8th December, 1968, when Sukhdev Singh P(sic). W. paid Rs. 90/ to the accused -Petitioner who was at the time the Secretary of Model Cooperative Society Dhamot Kalan. In Criminal Revision No. 365 of 1977, the offence is stated to have been committed on 11th January, 1969, when Amar Singh P.W. paid Rs 300/ -(sic) to the accused Petitioner and the cash in hand with the Petitioner belonging to the society on that date was Rs. 3119.55. In Criminal Revision No. 366 of 1977, a sum of Rs. 500/ - was paid by Prem Singh P. W. to the accused -Petitioner and on that date fertilizer worth Rs. 1700/ -(sic) belonging to the Society was stood entrusted to the accused Petitioner. The Criminal breach of trust has been found to be committed with regard to the aforesaid payments made to the accused -Petitioner and in relation to the goods in his hand. For criminal breach of trust the Petitioner has been sentenced to substantive imprisonment and has been ordered to pay fine. It would be noteworthy that in the case of Criminal Revision No. 364 of 197(sic), the Petitioner has been awarded 4 months rigorous imprisonment and a fine of Rs. 50/ or in default of payment of fine to undergo further rigorous imprisonment for one month. In the case of Criminal Revision No. 365 of 1977, the Petitioner has been awarded one year's rigorous imprisonment and a fine of Rs. 100/ -(sic) or in default to undergo further rigorous imprisonment for three months. In the case of Criminal Revision No. 366 of 1977, the Petitioner has been awarded 1/3 years rigorous imprisonment and a fine of Rs. 150/ - or in default of payment of fine to undergo further rigorous imprisonment for 6 months. The substantive sentences have been ordered to run concurrently.

(3.) ON the case having thus turned a corner, the learned Counsel for the Petitioner than suggested that the Petitioner should not be ordered to undergo sentence straightway(sic) in the light of the Petitioner being presumably 15 years of are at the tune(sic) of the commission of the offence. This inference has been drawn from the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, where he gave out his age 25 years. That was recorded in the year 1974 and the offences were committed in late(sic) 1968 and early 1969 I am afraid that this cannot be taken as an authentic proof of the age of the Petitioner, in order to loss(sic) the case within the pale of the minority clauses of the Probation of Offenders Act or to bring it within the purview of Section 361 of the Code of Criminal Procedure. One thing is certain, however, that the accused was young in age at the time of com -mission of the offence and also undeniably is a first offender. On that premises alone it was contended on his behalf that in view of the young age of the Petitioner and in the absence of any blemish on his character and antecedents, the beneficent and benign provisions of section 300(sic) of the Code of Criminal Procedure be invoked to put him on the road of reformation. It is also suggested that there are no reasons which could, under Section 361 of Criminal Procedure Code, deny(sic) him that benefit, it has to be noticed that the concept of punishment and the science of periology has undergone tremendous change in recent times. Similar set of facts may not warrant similar punishment. The path of reformation is therefore, open to offenders, who have chances of reformation so that they may become useful citizens of the State and society. It appears that within a span of 33 days (from 8th December, 1968 to 11th January 1969) the Petitioner remained on the path of criminality and committed criminal breach of trust of the amount and property, in question, which came handy to him. It cannot be lost sight of the fact that these breaches took place practically about 11 years ago which were followed by necessary accounting, the tracing of the crime and protracted investigation, which ultimately brought the accused to stand his trials. It is also patent that three simultaneous trials were held against the accused followed by three appeals and three revisions under the procedural three tier system, which must have put(sic) the Petitioner to an immense uncertainty besides the fear that he might have to undergo the imprisonment as imposed upon him by the trial court. It is not the only consideration but the cumulative effect of all these which does make room in favour of the Petitioner that he be given a chance to reform himself Consequently, applying the provisions of Section 30(sic) of the Code of Criminal Procedure, it is proposed to suspend the sentence of the Petitioner and he need not undergo any imprisonment or subject himself for payment of fine. Thus, instead, it is directed that he be released on probation for a period of 3 years subject to his enterig(sic) into a bond in the sum of Rs. 15000/ - with two suri(sic) -ties in the like amount on or before 21st December, 1979, before the trial Court, with a direction that he should keep the peace(sic) and be of good behaviour and to appear and receive the sentence imposed when called upon to do so by the trial Court during the aforesaid period for which the sentence has been suspended. The shackles of one bond would serve the purpose in all the three cases. Since monetary loss has been caused by the acts of the accused to the Co -operative Society, which if not caused, would have remained with the Society enabling it to multiply its appeals(sic) an order under Section 357(3) of the Code of Criminal Procedure is necessary to be passed correlative to the order made under Section 360 of the Code of Criminal Procedure. Thus, it is ordered that the accused would pay by way of compensation to the Society 2 sum of Rs. 120/ - in the case of Criminal Revision No. 364 of 1977, a sum of Rs. 45 0/ -(sic) in the case of Criminal Revision No. 365(sic) of 1977, and a sum of Rs. 22000/ - in the case of Criminal Revision No. 366 of 1977. These sums not only include the actual loss caused to the Society, but has added to it an approximate interest accrued thereon. The Petitioner would pay the first two sums on or before 30th September, 1980, and the remaining on or before 31st March, 1981. There is a tinge of retribution in following this course, but it is necessary appendage(sic) to the reformatory process set in motion. The Petitioner must alone and expiate and be not richer by the misappropriated property. On the failure of payment of the sums aforesaid it shall be deemed to be taken that the Petitioner has opted to undergo the unexpired portion of the imposed sentences of imprisonment and the fines with the default clauses and has caste aside the shackles of the bond. It appears that the course adonted(sic) in passing twin orders under Sections 360 and 357(3)(sic) of the Code of Criminal Procedure is not impermissible under the law. No doubt Section 357(3), Criminal Procedure Code, employs the expression "imposes the sentence" which appears to be precedent to the passing of the order for payment of compensation, yet it cannot be taken that the court imposing the sentence as a prelude(sic) to passing an order of compensation must require the accused to suffer the sentence. On the other hand, in Section 360, Criminal Procedure Code, the Court's power to impose sentence is not curtailed bur as a substitute to its execution, a bond in the terms thereof can be asked for. On breach of the terms of the bond the offender can be dealt with under Sub -section (8) and (9) of Section 360(sic) Code of Criminal Procedure and a sentence can be passed Apparently, this would appear to be for not only a case of fresh passing of sentence in a case when no sentence was imposed, but would also cover a case in which sentence was imposed but its execution was substituted by directing the offender to execute a bond, the breach of which would take away the substitute Light for such interpretation is sufficiently available from the combined reading of Sections 4 and 5 of the Probation of Offenders Act 1958 which provisions are complementary and somewhat analogous to Sections 357 and 361,(sic) Criminal Procedure Code. Under Section 5 of the Probation of Offenders Act Order for payment of compensation can be passed in addition to a direction for the execution of bond under Section 4 of the said Act. There is no reason not to spell the same power with the Court under the joint reading of the provisions of Section 357(3) and 360 Criminal Procedure Code. The Law Commission in its 41st Report while considering to draft Section 357. Criminal Procedure Code, had taken into account that compensation would be payable under section 357(3) of the aforesaid Code not as a punishment but could flow from the order of conviction And if it were to be spelled that the offender cannot be subjected to payment of compensation if he is to be given the protection of Section 360, Code of Criminal Procedure then it would be contrary to the spirit and the necessary intendment of the Legislature. The compensatory process involves no penal consequences. Order for payment of fine is a punishment and a part of sentence, whereas for compensation it is not.