Malay Sengupta, Acting C.J.
1. This case arises out of an application filed under Section 377 of the Code of Criminal Procedure, 1973 against the sentence imposed on 3-6-1996 by Shri P.W. Paljor, Judicial Magistrate, East in Criminal Case No. 56 of 1995 after convicting the accused persons under Sections 380/368/471/420/34, I.P.C.
2. The prosecution case was that accused Dorjee Sherpa and Ajoy Gurung were working as Typist and Peon respectively in the Department of Pension underthe Government of Sikkim. The other accused Lakpa Sherpa was a close associate of accused Dorjee Sherpa. Karma Bhutia was another associate. Shri M.B. Ruchal was the Chief Accounts Officer, Pension Section. It was alleged that all of them hatched up a plan to fraudulently withdraw cheques from Pension Section of the Finance Department and to get those cheques enacashed from different banks in Sikkim. Pursuant to the plan accused Dorjee Sherpa managed to take out letter heads and office seal of the Chief Accounts Officer, Pension Section with the assistance of accused Ajoy Gurung. Accused Dorjee and Karma prepared false requisition letters under forged signature of the Chief Accounts Officer, Pension Section and with the use of the letter heads and office seal. This way they obtained cheque books from Pay and Accounts Office. Several cheques were encashed and a total sum of more than Rs. 2,33 lakhs was fraudulently collected and misappropriated.
3. On the complaint of the Chief Accounts Officer, Pension Department police took up investigation in course of which endeavours were made to verify the signatures. It was ultimately found that accused Karma Bhutia had actually forged the signatures of the Chief Accounts Officer, Pension Cell. On completion of investigation police submitted charge sheet against accused Dorjee, Lakpa, Ajoy and Karma. Since no evidence could be collected against accused M. B. Ruchal, no charge sheet was filed against him. Accused Karma Bhutia was however shown as absconder till that date.
4. The case was taken up for framing up charges on 3-6-1996 and the charges under Sections 380/468/471/420/34, I.P.C. were framed against the three accused persons. When the chaises were explained to the accused persons in their own language Nepali, they pleaded guilty and did not claim to be tried. The learned Magistrate convicted the accused persons accordingly and sentenced them to simple imprisonment (confinement?) till rising of the Court and to pay fine of Rs. 400/- each. In default of payment of fine they were to undergo simple imprisonment for two months.
5. In an almost identical case where the amount involved was Rs. 12 ,420/-, FIR was lodged by the Director of Accounts, Government of Sikkim and on completion of investigation police submitted charge sheet against the same set of accused persons under Sections 380/468/ 34, I.P.C. It was registered as Case No. 69 of 1995; On 3-6-1996 when the charges were framed and the accused persons pleaded guilty to the same, the learned Magistrate passed order of conviction and imposed sentence in identical manner.
6. The State has come up with an application under Section 377, I.P.C. also against the order of sentence passed in Criminal. Case No. 69 of 1995. This application under Section 377, Cr.P.C. has been registered as Criminal Appeal No. 4 of 1997.
7. Since the Appellants and the Respondents are the same and since the points at issue in both the Appeals are the same the parties propose to take up hearing of the Appeals analogously. For the sake of convenience the Court also conceded to the request.
8. In case No. 69 of 1995, FIR was lodged on 15-4-1992 and charge sheet was submitted on 30-4-1994. In Case No. 56 of 1994, FIR was lodged on 2-5-1992 and charge sheet was submitted on 25-11-1994. In both the cases, as already stated, charges were framed on 3-4-1996.
9. From the dates of filing of FIRs and of submission of charge sheets it would be apparent that the cases were initially governed by the Code of Criminal Procedure, 1898 as the Code of 1973 came into force within the State of Sikkim only with effect from 13-9-1994. But that is with regard to the pre-trial aspects of the case. The trial commenced with the framing of charges when the new Cr.P.C. came into force within this State. In that situation provisions of new Cr.P.C. were attracted at that stage of the case. Decision reported in the case of V.N.S. Vishwanathan reported in 1978 Cri LJ (NOC) 101 may be referred to in this context.
10. When the trial was to be under the Provisions of the new Act, application of Sections 360 and 361 was mandatory. It may be noted that these provisions are applicable not only when the conviction is under Section 248(2), Cr.P.C. but is equally applicable when the conviction is under Section 241, Cr.P.C, as was in this case. Learned trial Court, therefore, was in gross error for not applying his mind in these aspects'. Soon after he passed the order of conviction under Section 241, Cr.P.C. he should have invoked the provision under Section 361, Cr.P.C. and should have noted the special reason if he was not inclined to deal with the convict under Section 360 or under the Probation of Offenders Act. It is apparent that the learned Magistrate did not care to invoke the aforesaid provisions of Cr.P.C. and straightaway imposed the sentence. We would later deal with the question whether it was a fit case for dealing with under Section 360, Cr.P.C. or under the Probation of Offenders Act. We would also deal with the question of adequacy of punishment.
11. Before we enter into the merit of the Appeal and the points as raised above we should take up the question of limitation. Admittedly the order of conviction and sentence was passed on 3-6-1996 and the certified copy was applied for and received sometime after 1 9-11-1996. It has been stated that the decision of proceeding under Section 377, Cr.P.C. was taken by the Government after opinions of the Law Department and of the Public Prosecutor were obtained. The learned Public Prosecutor also took some time in drafting the memos and could file the same only on 1-4-1997. The certified copies annexed to the Appeals under Section 377, Cr.P.C. however show that the certified copies were applied for and obtained on 21-3-1997. But from the applications for condonation of delay which have been registered as Crl. M.A. 1 of 1997 (Crl. Appeal No. 3 of 1997) and Crl. M.A. 2 of 1997 (Crl. Appeal No. 4 of 1997) we find that the certified copies must have been obtained prior to that date as on the basis of that certified copy the Law Department gave its advice on 20-3-1997. Without going into details it is apparent that some delay was there in the matter of filing of the Appeals under Section 377, Cr.P.C.
12. The grounds taken for condonation of delay are that the informants came to know about the result of the case only on 19-11-1996. That's too accidently. The Government official initiating the prosecution was not informed about the fate of the case. The other grounds are mostly connected with red tapism of Government machinery. It is really a sad affair that till time the status of the informants or the persons initiating any investigation is insignificant. In case where no charge is proposed to be framed, the prosecution gets an opportunity of knowing the situation and of making its submission as provided under Section 239, Cr.P.C. But there is no provision under the Code to make the informants apprised, of the situation when charges are framed and conviction is ordered for on the plea of guilt under Section 241, Cr.P.C. The other ground of bureaucratic red tapism is obvious and should receive due consideration by the Court of Law.
13. From the side of the Respondents a few decisions were quoted to contend that the State cannot get condoned the delay on their part under the present circumstances. Decisions in Ajit Singh v. State of Gujarat reported in AIR 1981 SC 733 : 1981 Cri LJ 293 and Chandra Bahadur v. Sundarmaya reported in 1983 Cri LJ 323 are amongst the decisions so cited. However, we may refer to two more recent decisions of the Supreme Court reported in AIR 1987 SC 1353 L.A. Collector v. Katiji and AIR 1988 SC 897 (G. Ramegowda v. Special L.A. Officer) dealing with the factors which are peculiar and characteristic of the functioning of the Government. The Supreme Court taking into consideration of such factors agrees to give certain amount of latitude in such cases. In the instant case we also propose to act in the same manner and condone the delay in filing the present Appeals under Section 377, Cr.P.C. We showed liberal attitude while admitting the appeals in question. Now we have dealt with the point in detail and we condone the delay and allow the Crl. Misc. Appplication Nos. 1 and 2 of 1997.
14. Now we would deal with the question of invoking the provisions of Section 360, Cr.P.C. and the relevant provisions under the Probation of Offenders Act. No such claim was made before the learned Magistrate when the accused Respondents pleaded guilty and were convicted. Such a plea has been taken only before this Court at the time of hearing of these Appeals. The contention of the Respondents is that they are very young in age and were much below 21 years of age at the time of commission of the offence. It has also been pleaded that they are not habitual offenders and this is for the first time they were involved in such a case. They contend that they committed such offences being misguided without realising the consequences of the same. Decisions reported in AIR 1974 SC 35 : 1974 Cri LJ 153 Ram Naresh v. State of Madhya Pradesh and 1995 Supp (3) SCC 599 : 1995 AIR SCW 4142 Jawalaram v. State of Himachal Pradesh and 1981 (Supp) SCC 42 : 1982 Cri LJ 629 (1) Roshanali v. State of Gujarat are three important decisions cited, along with other decisions on this point, by the respondents to establish that even in cases where the maximum prescribed punishment is 7 years and even when the ages of the convicts are more than 21 years, the convicts may be dealt with the provisions of the Probation of Offenders Act. Decisions reported in AIR 1983 SC 654 : 1983 Cri LJ 1043 (Masarullah v. 1State of Tamilnadu) and 1981 (Supp) SCC 17 (Aitah Chander v. State of A.P.) have also been referred to contend that the Court should not take technical views in such cases and should take into consideration some other aspects such as possibility of losing the job, for invoking the provisions of Probation of Offenders Act even in serious offences. It has further been contended that the Court should also take into consideration that the convicts belonging to middle class families without any criminal antecedent often become victim of circumstances because of undesirable company and other evil influences available to such young generation.
15. It may be noted that in the matter of invoking provisions under Section 360, Cr.P.C. or under the Probation of Offenders Act law confers wide discretionary power to the Court in exercising the same in appropriate cases. A reading of Section 360, Cr.P.C. and of Section 4 of Probation of Offenders Act indicates that the Court should exercise its discretion having regard to circumstances of the case including the nature of the offence. There are some offences which convey more impact on the society than the offences which are apparently more grave in nature like robbery, dacoity and even culpable homicide. Keeping the same in view some offences have been excluded from the purview of the Probation of Offenders Act under Section 19 of the said Act. Mere age could not be a ground for enlarging an accused on probation. We know of cases where release on probation were refused even when the convict was below 21 years of age and for cotnmitting offences not covered under Section 18 of Probation of Offenders Act. Person involved being a first offender was not always accepted as a good ground for invoking provisions of Probation of Offenders Act. We may refer to the decisions reported in 1972 Cr. LJ 406 Abdul Rahiman v. State of Mysore AIR 1973 SC 780 : 1973 Cri LJ 593 Ram Prakash v. Himachal Pradesh 1974 Cr LJ 1392 : AIR 1974 SC 2117 (Kamroonissa v. State of Maharashtra) and 1983 Cr LJ NOC 199 (K. Nazeema v. State of Kerala) in this context. We are aware of offences which are apparently of lesser importance than robbery, dacoity and culpable homicide have far more impact on the society. White collared offences and offences relating to public funds are worth mentioning. We do not think that offenders of such offences though do not come under the purview of Section 18 of the Probation of Offenders Act should be dealt with in a different manner. In a case reported in 1980 Cr LJ 417 (Gurbachan Singh v. State of Punjab) the Court, though on a different context, observed 'there are many offences against the society and corruption by the Government servants in connection with their official duties amongst those is one of the serious ones. The inclination of legislature and the judiciary against the extending of benefit of the beneficial legislations like Probation of Offenders Act to the perpetrators of the white-collar crimes is clearly discernible from certain legislative enactments and judicial pronouncements'. We are of the opinion that the offenders of crimes relating to public fund or Government exchequer should be dealt with seriously.
16. In the instant case before us the offenders though young in age committed offences in a manner which indicated that they have already acquired sufficient maturity in committing such offences. These are nottray instances and were committed in a planful and not in playful manner. We do not think, that Probation of Offenders Act should be invoked in such cases.
17. We have already noted that prayer for dealing with the convicts under Probation of Offenders Act was made in writing during the hearing of the Appeals in question. There it has been stated that the convicts were much less than 21 years of age. Such a plea was not taken at any earlier point of time. If we refer to the decisions reported in 1977 Cri LJ 340 : AIR 1977 SC 698 and 1984 Cri LJ 29 we would find that the plea of availability of the benefit of the provision of Section 360, Cr. P.C. or of Section 6 of the Probation of Offenders Act is to be taken at the earliest opportunity. Again, mere statement at the time of examination of the accused under Section 313, Cr. P.C. would not be sufficient so far as the question of age is concerned. Proper proof is necessary. In short, we may note that someone desirous of having the benefit of Probation of Offenders must come with appropriate proof and that's too at the earliest opportunity. In the instant case it was not so done. Moreover, we find from the charge sheets that the age of the accused persons were much higher than what is now being pleaded by the respondents.
18. From all these facts and circumstances we hold that this is not a fit case for dealing with the provisions of Section 360, Cr. P.C. or of the Probation of Offenders Act. It may be noted that in cases where the question of invoking the above mentioned provisions comes up before the High Court we should not send the cases back on remand to the Trial Court to deal with these provisions by the said Court. The matter should be dealt with by this Court itself even when the Court holds that the case is worthy of being dealt with as such. Principle of Law in this respect may be had from the decisions reported in AIR 1977 SC 1747 : 1977 Cri LJ 1139 Tarlok Singh v. State of Punjab and AIR 1977 SC 1579 : 1977 Cri LJ 1206 (Dagdu v. State of Maharashtra). We have already expressed our views that this case is not worthy of being dealt with under Section 360, Cr. P.C. and under any provision of Probation of Offenders Act. Therefore, we may now go into the question of adequacy of sentence.
19. The sentences prescribed for each of the offences under Section 380/468/471 and 420, IPC are imprisonment for 7 years and fine. The amount involved is pretty big. What we find is that the learned Magistrate considered it adequate to keep the convicts in confinement till rising of the court and in case of fine it was Rs. 400/-. Sentences must be commensurate with the graveness of the offence. A sentence should not be of a manner which would provide encouragement to other people to commit such offences or would encourage the convicts to repeat the performance. No word is sufficient to criticise the conduct and prudence of learned trial Court dealing with the point of sentence in a shockingly reckless manner.
20. Though it is not strictly relevant in the present context but we must note that the learned Magistrate erred in not passing any direction with respect to the disposal of the seized properties. It is a must. It is not clear whether the learned Magistrate preferred not to pass any order with respect to disposal of the properties as there was other absconding accused person who might be brought to trial on any future date. Even in that case, order could have been passed with respect to the cash recovered from the other convict. Thus we find that the learned Magistrate committed gross errors in no! applying the provisions of Section 361, Cr. P.C, imposing sentence which is not commensurate to the magnitude of the offence and not passing any order about disposal of the seized properties.
21. We are of the opinion that it would be just and proper to sentence each of the convicts/ Respondents to suffer RI for 3 years and to pay a fine of Rs. 20,000/-, in default to suffer RI for one year more. The sentences would be for both the Criminal Case Nos. 56 of 95 and 69 of 95 and * * * would run concurrently. The convicts would, however, get the benefit of set-off for the period of their detention during investigation and trial of the case against the sentence of imprisonment. The cash seized by the Investigating Authorities be forfeited to the State. Rest of the seized articles be retained as they are, till the absconding accused is available and dealt with.
22. The Petitions under Section 377, Cr. P.C. are allowed. The orders dated 3-6-1996 passed by the learned Judicial Magistrate, East Sikkim in Criminal Case Nos. 56 of 95 and 69 of 95 so far as they relate to the sentences and disposal of property be modified accordingly. This order would govern Criminal Appeal No. 3 of 1997 and Criminal Appeal No. 4 of 1997 of this Court. Trial Court records be sent down forthwith. The Convict-Respondents to appear before the Trial Court by 14-8-1997 to receive sentence as above. In default, learned Magistrate would take necessary step to ensure execution of the sentence.