Alok Singh, J.
1. Mr. Rajendra Kotiyal, learned Counsel for the revisionist.
2. Mr. Nandan Arya, learned AGA for the State of Uttarakhand.
3. Since both the revisions are arising from one and common judgment passed by Trial Court and Appellate Court, hence, both the revisions are being taken up for hearing together and are being decided by this common Judgment.
4. Heard learned Counsel for the parties.
5. Brief facts of the present case are that one detenue -Surendra Singh was directed to be taken to Government Hospital, Gopeshwar for medical examination on 28.01.1994 by both the revisionists (accused). Both the accused revisionists took the custody on 28.01.1994 and took him along to District Government Hospital. However, in the intervening night of 28.01.1994 and 29.01.1994 Surendra Singh escaped from the custody of both the accused. Hence, report was lodged against both the accused on 29.01.1994. Superintendent of Police, Chamoli granted permission/sanction to prosecute the accused as per Regulation 486(6) of the Police Regulation, as applicable at the relevant time.
6. After investigation chargesheet was submitted against both the accused revisionists under Section 223 IPC. From the side of prosecution three witnesses PW 1 - Sangeeta, Staff Nurse, PW 2 - Gurucharan Singh, Head Constable, PW 3 - Bhagwan Singh RI (retired) were examined. Learned Trial Court after elaborate discussion found that revisionists accused guilty of offence under Section 223 IPC. Learned Trial Court, instead of sending them to jail, imposed fine of Rs. 6000/- each on both the accused with the direction that in the event of non payment of fine both the accused would have to undergo six months simple imprisonment vide judgment dated 05.03.1997.
7. Both the accused preferred criminal appeal in the court of Sessions Judge, Chamoli which was registered as Criminal Appeal No. 7 of 1997. Learned Sessions Judge having considered the entire material and having perused the judgment passed by learned Trial Court reduced the fine amount from Rs. 6000/- to Rs. 3000/- each.
8. Feeling aggrieved from the judgment passed by learned Trial Court as well as by the Appellate Court, both the revisionists filed separate revisions before this Court.
9. Mr. Rajendra Kotiyal, learned Counsel for the revisionist on being confronted by this Court stated that jurisdiction under Sections 397 and 401 Cr.P.C. is limited. Re-appreciation of evidence is not possible in revision. He, however, further argued that both revisionists accused ought to have been released on probation on furnishing personal bond and two sureties each to the satisfaction of learned Trial Court.
10. According to Mr. Rajendra Kotiyal, no other criminal case was ever registered or is registered against both the accused.
11. Learned Counsel for the revisionist placed reliance on the judgment passed by the Hon'ble Apex Court in the matter of Commandant, 20th Battalion ITB Police v. Sanjay Binjola reported in 2001 SCC (Crl.) 897. The Hon'ble Apex Court in paragraphs 9 and 10 has observed as under:
9. It is not disputed that for an offence punishable under Section 10 of the Act, the sentence provided is one year with fine entitling the respondent to claim the benefit of Section 3 of the Probation of Offenders Act. It transpires that both the appellate as well as the High Court, after passing the order of conviction and sentence and having regard to the circumstances of the case including the nature of the offence and character of the offender, thought it expedient to take a lenient view and instead of sending him to jail opted to pass a sentence till the rising of the Court. On the point of sentence, the appellate court observed:
I think it justified to consider leniently because the accused Sanjay Binjola is a young boy and he just took excessive liquor on the alleged liquor day. It is also to be kept in mind that in the paramilitary forces liquor is provided comparatively cheaper to the paramilitary personnel, hence, I find that the punishment given to the accused of sentence of three months is severe, consequently, I reach at the conclusion that the sentence awarded by the lower court is modified accordingly.
and in this context directed that the order of conviction and sentence would not adversely affect the service career of the accused. It is true that nobody can claim the benefit of Sections 3 and 4 of Probation of Offenders Act as a matter of right and the court has to pass appropriate orders in the facts and circumstances of each case having regard to the nature of the offence, its general effect on the society and the character of the offender, etc. There are laws which specifically direct that the provisions of the Probation of Offenders Act shall not apply to the persons convicted for those offences and there may be cases under other laws as well which may not justify the exercise of the powers of the Probation of offenders Act. Even apart from such exclusions the courts should be wary of extending the benefit of the probation of offenders Act to offences relating to corruption, narcotic drugs, etc. This court has indicated in Dalbir Singh v. State of Haryana that benefit of the Probation of Offenders Act should not normally be afforded in respect of the offence under section 304A IPC when it involves rash and negligent driving. Those are instances for showing how the nature of the offence could be dissuade the court from giving the benefit. However, in an offence of a trivial nature as the respondent is stated to have committed and keeping in view its peculiar circumstances, we find it to be a fit case where powers under Section 3 of the Probation of Offenders Act can be exercised.
10. While allowing the appeal and setting aside the impugned order we direct that despite confirmation of conviction by the learned Sessions Judge, the respondent be given the benefit of the Probation of Offenders Act. Instead of sentencing him to any punishment, we direct the respondent to be released on his entering into a bond with two sureties, to appear and receive the sentence when called upon during the period of two years and in the meantime, to keep the peace and be of good behaviour. The respondent shall furnish the bond and the sureties before the Trial Magistrate within a period of two months from today. We further hold the respondent entitled to the benefit of Section 12 of the Probation of Offenders Act.
12. Mr. Nandan Arya, learned AGA appearing for the State of Uttarakhand submitted that till date he has not received any information about any criminal case against both the revisionists accused. Mr. Nandan Arya, stated that revisionists may be released on probation subject to the direction that while accepting their sureties and person bonds, learned Trial Court shall call for the report as to whether any criminal case was ever initiated against both the revisionists and if no other case was ever registered their personal bonds and sureties be accepted for the purposes of releasing them on probation for two years.
13. It is settled principle of law that a person can be released on probation when he is accused of offence punishable with not more than two years imprisonment and no previous conviction is proved against him. It is also settled that a person can be released on probation keeping his age, character, antecedents, physical or mental condition of the offender and the circumstances under which the offence was committed in consideration.
14. Both the accused were constables in Civil Police, they were given duty to take detenue Surendra Singh from jail to District Government Hospital for medical check up and from their custody the detenue Surendra escaped. In my view since the Courts below instead of sending the revisionists in jail opted to impose fine, hence, in view of dictum of the Hon'ble Apex Court (Supra) it would be just and proper to release both the accused/revisionists on probation for a period of two years on furnishing personal bond and two sureties each to the satisfaction of learned Trial Court. It would also be appropriate to direct that accused/revisionist shall not suffer any disqualification, if any, attaching to a conviction of an offence.
15. In the light of observations made herein above, I direct that judgment passed by both the Courts below shall stand modify to the extent that both the revisionists shall be released on probation for a period of two years on furnishing their personal bonds and two sureties each to the satisfaction of the learned Trial Court. On their release accused/revisionists shall not suffer any disqualification, if any, attaching to a conviction order as passed by learned Trial Court and confirmed by the Appellate Court. Learned Trial court before accepting the personal bonds and sureties shall call report from the State as to whether any criminal case is ever initiated against the accused/revisionists. If report comes in negative then only above benefit shall be extended, otherwise present revisions shall be deemed to have been dismissed. It is further directed that if either of the revisionists is found in breach of any condition for release on probation in that event period of probation shall cut short and they would be asked to suffer as per the directions given in the impugned judgment and order passed by the Trial Court.
16. With the above direction, both the revisions stand disposed of.