State of Karnataka Vs. D.S. Prabhakar Bhatta - Court Judgment

Excerpt:
- karnataka civil service. (performance report) rules, 1994.confidential reports: [h.n. nagamohan das, j] procedure to be followed in the matter of preparing confidential reports under notification issued by the high court of karnataka, prescribing specific formats - held, the recording of remarks in the confidential record of any judicial officer shall be strictly in accordance with the rules, 1994 and the notification. any deviation in this regard will affect the career of judicial officer and also on his reputation. on facts held, the notification dated 15.11.1988 specifies two report forms as part a and part b. clause (2) of this notification specifies that the district judges shall fill up and submit in duplicate form part a in respect of himself to the high court by 31st january each year for taking further action by the high court. in the instant case, the petitioner who was a district judge had not submitted form part a to the high court. in the absence of form part a by the petitioner, the recording of adverse remarks in his confidential record by then chief justice is contrary to notification dated 15.11.1988. therefore, the impugned communication of adverse remarks are liable to be quashed. -- karnataka judicial services (recruitment) rules, 1983. rule 3(2): [h.n. nagamohan das, j] rules regulating the conditions of service - petitioners prayer for quashing the communication, the adverse remarks recorded in the confidential record for the year 1998- grievance of the petitioner, the adverse remark is recorded in his confidential record are made without jurisdiction whether chief justice is the competent authority to record adverse remarks in the confidential record of a district judge - held, the competent person to record adverse remarks in the confidential record of a district judge is the concerned administrative judge and not the chief justice. on facts, held, the competent person to record adverse remarks in the confidential record of the petitioner was the concerned administrative judge i.e., justice t.n. vallinayagam and not then chief justice. in the instant case, it was then chief justice who had recorded the impugned adverse remarks in the confidential record of the petitioner and the same was without jurisdiction. on this ground, the impugned communication of adverse remarks in the confidential record of the petitioner is liable to be quashed. - the law is well settled.1. this appeal is preferred under section 377, cr.p.c. and section 11 of the probation of offenders act questioning the legality of the order of the learned sessions judge, chickmagalur dt. 2-5-90 passed in s.c. no. 19/87 extending the benefit of the provisions of section 4 of the probation of offenders act to first accused-respondent. 2. respondent and two others were tried for offences punishable under sections 341, 307 r/w 34 ipc, section 324 r/w 34 ipc and section 323 r/w, 34 i.p.c. the case of the prosecution is that, a. 1-respondent was the servant of a. 3 and a. 2 is the son of a. 3 and the respondent was residing with a. 2 and a. 3. there was some dispute between injured p.ws. 1 and 2 and accused 2 and 3 as a. 3 had to reach their land through the land of p.ws. 1 and 2. 3. according to the prosecution, on 3-5-86 at about 6.30 p.m., p.ws. 1 and 2 had gone in search of their missing cow near the garden of a. 3. a. 1 to a. 3 wrongfully restrained them by abusing them in filthy language and at the instigation of a. 2 and a. 3, a. 1 stabbed p.w. 2 on his abdomen and thigh. when p.w. 1 attempted to rescue his brother p.w. 2, a. 1 stabbed him and caused grievous injuries. 4. accused have denied the charge. six witnesses were examined by the prosecution and relied on seven documents and one material object to substantiate the charges against the accused persons. the learned sessions judge having assessed the evidence let in by the prosecution reached the conclusion that the offence under section 341 r/w. 34 i.p.c. had been proved against a. 1 to a. 3 and further held that the offence under section 307 and 324, i.p.c. was established against a. 1 and that a. 2 had committed an offence punishable under section 323, i.p.c. the learned sessions judge after hearing the accused persons regarding sentence released a. 2 and a. 3 under section 3 of the probation of offenders act having regard to the age of a. 3. the learned sessions judge extended the benefit of section 4 of the probation of offenders act against a. 1 also and released him on probation on certain conditions. accused 1 to 3 have not questioned the order of conviction passed by the trial court. the state has restricted its appeal only to the question of extending the benefit of section 4 of the probation of offenders act to a. 1. 5. sri b. h. satish, learned government pleader submits that the trial judge committed an error in extending the provisions of section 4 of the probation of offenders act to a. 1 who is convicted for the offence under section 307, i.p.c. which is punishable with imprisonment for life. the learned amicus curiae for respondent tried to justify the impugned order. the law is well settled. the supreme court in jugal kishore prasad v. state of bihar, 1973 scc (cri) 48 : (1973 cri lj 23) has stated as follows : 'it is wrong to contend that the offences excluded from the purview of the section are only those offences wherein punishment prescribed is imprisonment for life and not for a lesser term for the language used in the section does not warrant such a view. the plain meaning of the section is that the section cannot be invoked by a person who is convicted for an offence punishable with imprisonment for life. the fact that imprisonment for a lesser term can also be awarded for the offence would not take it out of the category of offences punishable with imprisonment for life.' the said view is again confirmed by the supreme court in jagdev singh v. state of punjab, (1973 scc (cri) 977) : (1973 cri lj 1614), wherein it is stated as follows : 'probation of offenders act is intended to carry out the object of keeping away from the unhealthy atmosphere of jail life where normally one has to mix with hardened criminals, those found guilty of the commission of comparatively less serious offences by providing for dealing with them under sections 3, 4 and 6 of the act as the case may be. an offence punishable under section 326 read with 34, i.p.c. being punishable with imprisonment for life does not fall within the ambit of the probation of offenders act.' in som nath puri v. state of rajasthan, where an accused person was convicted for offence under section 409, i.p.c. was released by the trial court extending the benefit of section 4 of the probation of offenders act, which order was set aside by the high court. on appeal to the supreme court, it is held that the offence of criminal breach of trust under section 409, i.p.c. is punishable with imprisonment for life. high court in our view was right because the provisions of section 4 are only applicable to a case of a person found guilty of having committed an offence not punishable with death or imprisonment for life. 6. the respondent is convicted for an offence punishable under section 307, i.p.c. for having caused grievous injury to p.ws. 1 and 2 in his attempt to commit murder and, therefore, the offence is punishable with imprisonment for life. in view of the law laid down by the supreme court we are of the view that the accused-respondent is not entitled the benefit under section 4 of the probation of offenders act. the learned sessions judge was wholly wrong in extending the benefit to the accused who was convicted for the offence punishable with imprisonment for life under part ii of section 307, i.p.c. and, therefore, the order under appeal is liable to be set aside. the respondent is liable to be sentenced for the said offence. 7. we have heard the learned amicus curiae regarding sentence. having regard to the nature of the offence, the age of the respondent and other attendant circumstances, we sentence the respondent to suffer r.i. for a period of one year subject to set off provided under section 428, cr.p.c. a. 1-respondent is directed to surrender before the court of session to suffer the sentence imposed on him. 8. fee of learned amicus curiae is fixed at rs. 500/-. order on being spoken to 9. this matter having listed for being spoken to, we have heard the learned govt. pleader and sri d. r. nagaraj, amicus curiae for respondent. 10. we have noticed that the state has preferred this appeal under section 377, cr.p.c. and under section 11 of the probation of offenders act, 1958. we find that the learned sessions judge has not passed any sentence of imprisonment or fine but only invoked the provisions of section 4 of the probation of offenders act. an appeal under section 377(1), cr.p.c. gives right to state to file an appeal only on the ground of inadequacy of sentence. therefore, an appeal under section 377(1) is not maintainable. 11. in state of u.p. v. salezar, 1984 cri lj 315, allahabad high court has laid down the law as follows at page 316 : 'section 377(1) cr.p.c. gives right to state government to file an appeal only on ground of inadequacy of sentence. appeal otherwise is not maintainable. thus, where an accused was convicted and sentenced by the trial court and in appeal the sessions judge maintained the sentence and also gave the benefit of section 4 of the probation of offenders act to accused, an appeal under section 377(1) challenging the grant of benefit of probation will not be maintainable. such an order is revisable under sub-section (4) of section 11 of the probation of offenders act.' this observation of the allahabad high court finds favour with the supreme court in state of u.p. v. nand kishore misra, : 1991crilj456 . 12. the supreme court in state of uttar pradesh v. nand kishore mishra, : 1991crilj456 , stated the law as follows at page 457 of cri lj) : 'where the convict was released on probation under section 4 of the probation act, by the magistrate, the appeal against release would lie to the sessions court in view of provisions of section 11(2) of the said act and appeal to the high court under section 377(1) of the cr.p.c. would not be competent. the plain language of section 377(1) of cr.p.c. makes it clear that the state government can file an appeal to the high court 'against the sentence on the ground of its inadequacy.' in a case where the conviction is recorded by the trial court, put instead of awarding sentence of imprisonment the convict is released on probation under the provisions of the relevant special law then it is a case where no sentence at all has been awarded and as such the provisions of section 377(1) are not attracted.' 13. hence, this appeal filed by the state under section 377(1) for enhancement of sentence is not maintainable. however, an appeal lies under section 11(2) of the probation of offenders act to this court against the order passed under section 4 of the probation of offenders act. 14. we have already expressed our view that the learned trial judge is not empowered to invoke the provisions of section 4 of the probation of offenders act and therefore the order is not sustainable. therefore, we are of the opinion that the order of the learned sessions judge invoking the provisions of section 4 of the probation of offenders act is liable to be set aside. we think it proper to remit back the matter to the sessions judge to hear the accused afresh regarding sentences and pass suitable order regarding sentence. 15. order accordingly.