Ravinder @ Ravi and anr. Vs. State - Court Judgment

Excerpt:
probation of offenders act, 1958 - section 4--benefits of probation--conduct of accused--conviction not challenged--appellant have suffered the agony of trial for last 12 years--no allegation against previous conviction--deserve benefit to be extended--directed to released on entering rs. 10,000/- in a personal bond--appeal stands disposed of. - divorce by mutual consent personal presence of parties exempted power of attorney to dissolve the marriage the special power of attorney in favour of one mr. lal babu tiwari was executed by the petitioner (husband) to appear before the court and testify about the contents of the petition. the petitioner has signed the petition before indian consulate high commission of india in uk under section 3(2) of the diplomatic and consular officers (oaths and fees) act, 1947 under which the documents do not require any further evidence.[para 3] if both the parties, by way of affidavits or through counsel, state that they are married, and are able to produce proof of the marriage and that they have been living separately and have not been able to live together for the prescribed period, then there can be no reason as to why the court should not record its satisfaction as envisaged under section 13-b(2) of hindu marriage act, despite the fact that parties had not appeared in person and pass a decree for divorce.[para 6] where the parties are living far away from the jurisdiction of the court competent to dissolve the marriage, the parties after filing their affidavits can appoint attorneys to act on their behalf. attorney is competent to act on behalf of the principal on the basis of power of attorney executed by the principal. the courts have been allowing attorneys to file the petition, to withdraw the petition, to carry on proceedings in the court on behalf of their principal in all other cases. the attorney can also act in matrimonial cases as per instructions of their principle. the court can take necessary precautions to prevent frauds being perpetuated on it but unless the court smells some kind of fraud being played with it, the court should normally recognize the act of the attorneys. i therefore allow this petition. the order of the trial court insisting on the personal appearance of the parties is set aside.[para 8] - having regard to the facts and circumstances of this case including the nature of the offence and the character of the offenders, it is considered expedient to release them on probation of good conduct and, thereforee, it is directed that they be released for a period of two years on their entering into a personal bond in the sum of rs. 10,000 /- each (rupees ten thousand) with one surety each in the like amount to appear and receive sentence as and when called for during such period and, in the meantime, they shall keep peace and be of a good behaviour.r.s. sodhi, j.notice. learned counsel for the state accepts notice.1. this application is filed on behalf of the appellants seeking the application of section 4 of the probation of offenders act, 1958 to the facts and circumstances of their case. the learned counsel for the appellants submits that against the same judgment and order one of the accused has already been admitted to the benefits of probation of offenders act, 1958 and, thereforee, in this case, which is much milder the appellants may be admitted to the same, benefits of probation of offenders act,2. i have heard learned counsel for the appellants as also learned counsel for the state.3. crl. appeal no. 373/99 is taken on board. crl. a. no. 373/99:4. the learned counsel for the appellants does not challenge the conviction of the appellants and, thereforee, i up hold the order of the learned additional sessions judge convicting the appellants vide order dated 28.7.1999 in sessions case no. 444/96 arising out of fir no. 204/87 police station najafgarh. learned counsel for the appellants, having confined his submission only to the question of sentence and in particular the benefit of probation of offenders act, 1958 being given to them, has submitted that the other accused has also been admitted the benefits of this act and, thereforee, in the facts and circumstances of this case, the appellants also deserve to be treated alike. learned counsel for the state does not oppose this prayer.5. in this view of the matter, taking into consideration all the circumstances of this case, i am of the view that in the present case, the appellants have suffered the agony of trial for the last 12 years. besides that, they have already undergone a period of two months in custody. there is no allegation that the appellants are previous convict. keeping in view the circumstances and the fact that the offence of which they have been convicted and the fact that the offence is not punishable for life imprisonment, they deserve the benefit under section 4 of the probation of offenders act to be extended.6. in the circumstances, while maintaining the conviction of the appellants, the sentence of imprisonment and fine as awarded to them is set aside. having regard to the facts and circumstances of this case including the nature of the offence and the character of the offenders, it is considered expedient to release them on probation of good conduct and, thereforee, it is directed that they be released for a period of two years on their entering into a personal bond in the sum of rs. 10,000 /- each (rupees ten thousand) with one surety each in the like amount to appear and receive sentence as and when called for during such period and, in the meantime, they shall keep peace and be of a good behaviour. the requisite bonds and the sureties shall be to the satisfaction of the trial court/cmm. the fine, if already paid, is directed to be treated as compensation to be paid to the parents of the deceased.7. with this modification, the order dated 29.7.1999 of the learned additional sessions judge in sessions case no. 444/96 is modified.8. the appellants are on bail. their bail bonds and the sureties arc discharged once they furnish the requisite bond/surety as directed above.the appeal stands disposed of dasti.