Judgment:
ORAL JUDGMENT:
1. Heard Mr. M. P. Khajanchi, learned counsel for Appellant and Mr. M. K. Pathan, learned APP for Respondent.
2. The petitioner has questioned validity and legality of the Judgment and Order dated 29/06/2009 passed by the learned Extra Joint Ad-hoc Additional Sessions Judge, Chandrapur, in Criminal Appeal No. 31/2003, and Judgment and Order dated 15/03/2003, passed by the learned Chief Judicial Magistrate, Chandrapur in Regular Criminal Case No. 85/2001.
3. Heard submissions on behalf of the petitioner and respondent-State.
4. It appears that the petitioner who was original accused no. 2 was facing charge for an offence punishable under Sections 409, 420, 468 and 471 read with Section 34 of the Indian Penal Code, in respect of the alleged misappropriation of an amount of Rs. 42,729/-. According to the petitioner, the amount of Rs. 42,729/- stood repaid to Government Treasury by original accused no. 1 - Tulshidas Tanbaji Nandgawe (husband of the petitioner) vide Exh.20. The accused no. 1 was acquitted by the Court while accused no. 2 was convicted by the trial Court for an offence punishable under Sections 409 and 468 of the Indian Penal Code by the Judgment and Order dated 15/03/2003. She was convicted and sentenced to suffer rigorous imprisonment for three years and to pay a fine in the sum of Rs. 5,000/- in default of payment of fine, she was directed to suffer rigorous imprisonment for six months more. The sentence was for the offence punishable under Sections 409, 420, 468 and 471 of the Indian Penal Code. She had challenged the legality and validity of the Judgment and Order of the trial Court by filing Criminal Appeal No. 31/2003 which was decided on 29/06/2009, by learned Ad-hoc Sessions Judge, Chandrapur, who was pleased to dismiss the appeal.
5. The learned Advocate for the petitioner submitted that the accused is a lady, aged about 63 years. She is suffering from cancer and is on the death bed. She has become physically weak and is under continuous medical treatment. Under these circumstances, it is prayed that she is entitled for the benefit of probation of good conduct under Section 360 of the Code of Criminal Procedure. Reference is made to the ruling in the case of Hari Singh Versus Sukhbir Singh And Another reported in (1988) 4 SCC 551 in which case, the accused was convicted for an offence punishable under Section 307 of the Indian Penal Code for an attempt to commit murder. The Apex Court considered the question as to whether the accused is entitled to the benefit of probation of good conduct. The Apex Court observed that many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the court encourages their own sense of responsibility for their future and protects them from the stigma and possible contamination of prison. Thus, in the absence of previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. The decision by the High Court to grant benefit of probation of good conduct under Section 360 of the Code of Criminal Procedure was upheld by modification only to the extent of compensation payable by the accused to the victim in that case.
6. Learned Advocate for the petitioner also made reference to the ruling in the case of Constancio Figuetro of Guirim, Bardez, Goa V/s. State reported in 1984 Mh.L.J. 472 in which this Court had observed in para 6 with reference to Section 360 of the Criminal Procedure Code, that Section 360 of Code of Criminal Procedure confers an unfetered discretionary power to the Court to, instead of sentencing the offender at once, release him on his entering into a bond, when, in its opinion, this is advisable having regard to the age, character or antecedents of the offender as well as to the circumstances in which the offence was committed and when, in a case of a person above 21 years of age, the offender is a woman convicted and the offence is not punishable with death or imprisonment for life and there is no previous conviction, the Court can exercise discretion to release the offenders on his entering into a bond in the circumstances mentioned. This Court considered the language of Section 360 of the Code of Criminal Procedure and observed that the Magistrate having regard to all circumstances and the evidence on record has to arrive at a prima facie finding as to whether there are special reasons for acting under Section 360 and that the circumstances are such that it is expedient to call for report of the probationary officer so as to gather material and character in respect of offenders.
7. Learned Counsel for the petitioner, therefore, submitted that as the petitioner is a lady accused and a house wife and at the time of hearing of the sentence, she had submitted that she did nothing and no offence has been committed by her, she may kindly be excused from the charges. The learned counsel for the petitioner has submitted that she may kindly be released on her entering into a bond she being a lady accused, but the learned trial Judge, while making observation that, the offence is of social nature and the property is in respect of the offence of cheating and misappropriation was committed, was of the view that it was not a good case to give relief as prayed for by learned counsel for the accused. While Appellate Court did not address itself on the point as to whether appellant was entitled to benefit of probation as contemplated under Section 360 of the Code of Criminal Procedure or not.
8. The learned A.P.P. opposed the petition and submitted that the nature of offence proved against the petitioner was serious as Section 409 of the Indian Penal Code prescribes punishment for imprisonment for life or with imprisonment for a term which may extend to 10 years and fine. Learned A.P.P. therefore, submitted that the benefit of probation ought not to be granted in favour of the revision petitioner. Learned A.P.P. further could not point out any ruling to controvert the view expressed in the ruling cited above in the case of Hari Singh (cited supra). The Apex Court was considering the offence punishable under Section 307 of the Indian Penal Code which is also punishable with imprisonment for life. Considering the peculiar facts of the case, the Apex Court in Hari Singh's case (cited supra) has upheld that the relief of the probation of good conduct granted by Punjab & Haryana High Court under Section 360 of the Code of Criminal Procedure mainly on the ground that many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the court encourages their own sense of responsibility for their future and protects them from the stigma and possible contamination of prison. In the present case, considering that the revision petitioner is a 63 years old lady, suffering from Cancer and reportedly on bed rest, she can be classified as a weak and not dangerous offender. She might have due to her temptation involved in the offence established against her. Learned counsel for the petitioner submitted that she is unable to visit the Court. Her present medical condition is stated on affidavit by Doctor Nandkumar Shivram Malakolikar. He stated that the petitioner is a widow, suffering from cancer and is under regular medical treatment. She has been adviced to have complete bed rest. Accordingly, she had filed medical certificate on 06/04/2011 and she is under his regular medical treatment. She has lost her husband and now living a life of widow. In this peculiar facts of the case, I think that the ratio of the ruling in Hari Singh's case (cited supra) needs to be followed in this case also as petitioner appears to be an unfortunate widow under continuous medical treatment because of disease. No useful purpose will be served by directing her to live behind the bars probably for the rest of her life in the facts and circumstances of the case stated above. That being so, there are special reasons in this case for to release petitioner-accused on probation of good conduct, therefore, following order is passed.
ORDER
1) The conviction of the revision petitioner is confirmed on all the counts as found by the Courts below. However, instead of sentencing to the petitioner-accused to undergo any punishment by way of imprisonment, I direct that she shall be released upon her entering into a bond with two sureties in the sum of Rs. 10,000/- for to appear and receive sentence when called upon during the period of three years from the date of execution of bond. In the mean time, she shall keep the peace and be of good behaviour. She shall enter into a bond with two sureties in the sum of Rs. 10,000/- in the like amount for a duration of three years. Order accordingly.
2) Petition stands disposed of.