GULAM HUSSAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal misc. petition filed by the petitioner for recalling the order passed by this court in S.B.Criminal Appeal No. 109/1983 dismissing the appeal filed the petitioner/appellant against his conviction for the offence under Sec. 304-11 Indian Penal Code. The appeal was heard and was dismissed, and the conviction recorded by the learned trial court has been upheld.

(2.) By filing this petition, it has been urged that while maintaining the conviction of the appellant/petitioner, this Court could not consider as to whether the petitioner can be given the benefit of the Probation of Offenders Act or that the sentence of the appellant could be reduced or not, which was mandatory for this Court as per the provisions contained in Code Criminal Procedure as well as in the Probation of Offenders Act. The learned trial Court has dealt with this matter and while considering the case observed that the accused-petitioner is not above 21 years of age, when the accused-petitioner is below 21 years of age. It is a mandatory provision and the Court alter recording the finding of guilt has to see as to whether the person found guilty can be given advantage under Sec. 4 of the Probation of Offenders Act and in doing so the Court can call for the record of the Probation Officer on the point as to whether the person found guilty can be given benefit of the Probation of Offenders Act, or not. It has further been urged that when the age of the accused-petitioner, according to the finding of the learned trial Court is below 21 years and on account of extreme poverty, Illiteracy the petitioner who is a boy of below the age of 21 years shall not be made the victim of circumstances by not appointing the medical board at the material time when the learned Session Judge has observed that the petitioner was not above 21 years of age, this shows that the petitioner was below of 21 years of age. This aspect of the matter has escaped from the consideration of this Court. It has further been urged that it is mandate of the law that the age of the petitioner is required to be considered while passing sentence.

(3.) Moreover, there is mandatory provision in the criminal procedure code that the accused should be given an opportunity of hearing on the point of sentence but in the instant case while maintaining the conviction the accused should also have been given an opportunity of hearing on the point of sentence but the Court failed to do so. So this is a good ground for recalling the earlier order passed by this Court. It has been further urged that when admittedly the accused petitioner was below 21 years of age, and at the time when his appeal was decided after 8 years from the date of incident. There is nothing on record to show that the accused petitioner is a previously convicted person or is of bad character or any case has been instituted against him at the material time or further that a person who has started his career then at this stage a lenient view ought to have been taken by this Court while passing the sentence. In support of his submissions, learned counsel for the accused-petitioner referred the case of Dev Karan Vs. State (1991 RCC 518) wherein it has been observed that if High Court has decided a case, it has power to recall that judgment to meet the ends of Justice. Similarly in Babu Vs. State (1987 RLW 69) , the Full Bench of this Court has also observed that the recalling of an order is permissible in order to meet the ends of justice. While deciding the appeal, it has been observed by this Court that it is a case of single grievous injury, and the incident had occurred on account of a wordy quarrel on a trivial matter and therein the appellant wielded a weapon like lathi and landed blows resulting in the compound fracture.