DABBU Vs. STATE OF RAJ.

JUDGEMENT

(1.) This revision petition is directed against the judgment of learned Additional Sessions Judge, Dausa dated 14th March, 1989 maintaining the conviction but reducing the sentence imposed by Additional Chief Judicial Magistrate, Dausa in a case under Sec. 454 and 380 IPC. At present the accused stands convicted for both these offences and sentence imposed is six months' simple imprisonment on each count and a fine of Rs. 200.00 on each count, in default of payment of fine to further undergo one month's simple imprisonment on each count. Both the sentences have been ordered to run concurrently.

(2.) The only point remains to be decided in the case is whether accused is entitled to the benefit of Probation of Offenders Act (hereinafter referred to as 'the Act') or section 360 of the Code of Criminal Procedure in the given circumstances since after arguing the case for some time on merits, learned counsel for the petition frankly conceded and in my opinion rightly so, that there is concurrent finding and there is no scope for interference on merits.

(3.) Briefly, the facts of the case are that accused was produced before the Police by the complainant stating that he entered the house in the day and removed a Dhoti and a two band radio. The police after investigating the case submitted charge-sheet for offence under sections 454 and 380 IPC. Prosecution examined five witnesses in support of its case out of which three did not support the prosecution. Hence, the entire case rested on the statement of complainant Deepa (PW4). As already mentioned above, since the scope of the revision is limited, it is not a case for re-appreciating the evidence but it certainly is a circumstance for considering the case under Sec. 360 Crimial P.C. particularly because the accused had neither been convicted in past nor it is alleged that he is a in habit of lifting the goods like the one in the present case. The trial court has not at all referred to the provisions of Sec. 360 Cr. P.C. or of the Act. In fact, the case has not been considered for sentence in accordance with the provisions of Sec. 235 (2) Cr. P.C. It is extremely regretable that the learned Chief Judicial Magistrate, Dausa has failed to look into the mandatory provisions of law. It appears that he is unmindful of the mandatory provisions and the law laid down by their Lordships of the Supreme Court and this Court in a series of judgments. Such a dis-regard of law is not warranted from a Magistrate much less of the rank of Additional Chief Judicial Magistrate. An obligation is cast on the Court to hear the accused on the question of sentence before passing the sentence and this hearing is not an idle formality. Their Lordships of the Supreme Court in Maniappan Vs. State of Tamil Nadu, 1981 Cr.L.J. 726 and in Dagdu and other Vs. State of Maharashtra, AIR 1977 SC 1579 repeated the same proposition in series of subsequent cases that the imperative language of Sub-section (2) of Sec. 235 Crimial P.C. leaves no room for doubt that after recording of finding of guilt, in an order of conviction, the court is under an obligation to hear the accused on the question of sentence unless it releases him on probation of good behaviour (sic) or after admonition under Sec. 360 Cr. P.C. Sec. 360 Cr. P.C. has been specifically mentioned in Sec. 235 (2) Cr. P.C. by the legislature to show its mandatory character which is also borne out from the reading of Sec. 361 Cr. P.C. I have said so in cantina of cases that in cases the accused has not been dealt with under the provisions of Sec. 360 Cr. P.C. the Court is obliged to record in its judgment the special reasons for not doing so. The learned Additional Chief Judicial Magistrate has not only not given the reasons but he has not at all considered the case for that purpose. This is exhibiting his utter dis-regard for the mandatory provisions of law and for the law laid down by this Court. The learned Additional Sessions Judge has refused the benefit of the Act on the ground that accused has entered the house of a farmer in day time and, therefore, the nature of the offence is serious. He, however, considered the case fit only for reducing the substantive sentence of imprisonment from a period of one year to six months. It may be mentioned that for that also he has not assigned any reason as to what was the mitigating circumstance for which he reduced the sentence from the year to six months. If the learned Additional Sessions Judge was to consider the circumstance at all, he ought to have objectively considered also for giving benefit under section 360 Cr. P.C. particularly because section 380 Penal Code is punishable with maximum imprisonment for seven years and Sec. 454 Penal Code for three years. The provisions of Sec. 360 Cr. P.C. make it further obligatory to consider the case under sub-section (1) of that Sec. and for that he has to keep regard as to age, character and antecedents of the offender and to the circumstance in which the offence was committed. It is not borne out from the order of the learned Magistrate that he has taken note of any of these things. The provisions of Sec. 360 Cr. P.C. as well as the provisions of the Act are mile stones in the field of reformatory theory of punishments. It is well known that one of the main objects of punishments is the reformation of the offender and for that, at times punishment can be a greater evil if the person is kept with hardened criminals. Single lapse on the part of a person should not result in making him a hardened criminal and this is the responsibility of the Court while considering the case for sentence in the cases like the present one and that is also the spirit behind incorporating Sec. 235 (2) of the Code of Criminal Procedure and section 361 of the Code. In the instant case, neither the trial court nor the appellate Court having applied their minds properly, it becomes obligatory for this Court to consider the case under Sec. 360 Cr.P.C in fact, the Court should have called for the report of the Probation Officer or asked the accused to lead some evidence but I am dispensing with that procedure because the wrong has already been committed which is irreparable. The accused is already in jail for last more than a fortnight and the ends of justice would be frustrated in case time is consumed in obtaining the report thus, for the reason that the State Government also does not come with a case that he is a previous offender or that there is any case pending against him, I deem it proper to extend him the benefit of section 360 Cr. P.C.