[Probation Of Offenders Act] Gauhati HC Extends Benefit Of Probation To Man Convicted U/S 498A IPC, Says Offence Was Not Heinous

The Gauhati High Court on Thursday (December 19) extended the benefit of Probation of Offenders Act to a man who was convicted and sentenced by the Trial Court to undergo one year imprisonment for the offence of cruelty under IPC Section 498A, after noting that the nature of offence alleged in the case was not so heinous. 

Notably, the Probation of Offenders Act Act provides for the release of offenders on probation or after due admonition. Section 4 pertains to the power of the court to release certain offenders on probation of good conduct and Section 12 pertains to removal of disqualification attaching to conviction. The petitioner had sought the application of the Act on the ground that he had sent the maintenance amount to his former wife but she had refused to accepted; that he was a first time offender and had not been convicted previously for any offence.

Referring to judgments of the Supreme Court, Justice Arun Dev Choudhury observed that it was settled that the Probation of Offenders Act is milestone in progress of modern liberal trend of reform in the field of Penology.

“It is the result of recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. It was also held by Hon'ble Apex Court in the case of Ved Prakash Vs. State of Haryana reported in 1981 1 SCC 447, that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial court should collect material necessary to award a just punishment in circumstances. It was further held that the social background and the personal factors of the crime doer are very relevant in this regard.”

The Court relied upon the judgment of the Supreme Court in Sita Ram Paswan v. State of Bihar (2005) in which it was opined that while exercising the discretionary power under the Act 1958, the courts are to consider the circumstances of the case, the nature of offence and the character of the offender.

It was further held by the Apex Court that such power can be exercised by the court even at the appellate or revisional stage or also by Apex Court hearing appeal under Article 136 of the Constitution of India.

The High Court thus noted:

“In the case in hand, the offence was committed on 11.02.2008. The nature of offence cannot also be said to be heinous in the given circumstances of the present case. The victim and the accused have got remarried as recorded hereinabove. The accused has also offered the Mohr, paid the maintenance awarded, the wife had also withdrawn the maintenance case and in view of the aforesaid, in the considered opinion of this Court that this is a fit case where the benefit of provisions of the Probation of Offenders Act, 1958 should be given to the accused petitioner by this court in exercise of its revisonal power.”

Thus, the Court directed that the petitioner to file two sureties to the tune of Rs.20,000/- along with personal bond before the trial court and undertake to the effect that the petitioner shall maintain peace and good behaviour during the period of one year.

The petitioner-convict (an employee of NF Railways) filed a criminal revision petition under Section 401 read with Section 482 of CrPC challenging the judgment dated November 01, 2011 passed by Judicial Magistrate 1^st Class, Rangia convicting him under Section 498(A) (Husband or relative of husband of a woman subjecting her to cruelty) IPC and he was sentenced to undergo simple imprisonment for one year and pay a fine of Rs. 5000/-.

The petitioner had also challenged the Additional Sessions Judge's appellate judgement dated June 19, 2013 which had upheld the trial court's conviction order. 

He had filed an application before the High Court praying that he be granted benefit under Sections 360 and 361 of the CrPC and Sections 4 and 12 of the Probation of the Offenders Act, 1958.

It was submitted that on January 16, 2013 the respondent wife got remarried after “Talaque” given by the petitioner and such fact was brought to the notice before the Principal Judge, Family Court, Guwahati, in a proceeding filed by the wife under Section 125 of CrPC.

In the written statement filed before the Principal Judge, Family Court, the respondent wife made a claim for entitlement of Mohr of amount of Rs. 1,01,000/-.

Subsequently, on August 16, 2013, the petitioner and the respondent No. 2 (wife) made a joint prayer for withdrawal of the maintenance proceeding as the husband had already paid due amount arising out of maintenance.

It was also brought on record that after divorce, both the parties got remarried and they are living individual happy family life.

It was stated that the petitioner had sent a Demand Draft of Rs., 1,01,000/- drawn on State Bank of India dated December 9 and had sent it to the address of the respondent wife, through registered post, however she had refused to accept the DD.

The Counsel for the petitioner submitted that the petitioner has not been convicted previously for any offence and he is first time offender. It was submitted that the petitioner may be granted benefit under Sections 360, 361 of the CrPC and Sections 4 and 12 of the Probation of the Offenders Act, 1958.

The Additional Public Prosecutor for the State submitted that the petitioner had suffered in the meantime, he is in the fag end of the career and there is no instruction with his client as regards any criminal activities of the petitioner.

Applying the provisions of the 1958 Act the court further said that the petitioner must be given benefit of Section 12 and the "conviction should not affect his service/ pensionary benefit”. It thus allowed the plea.

Case Title: Md. Badrut Zaman v. The State of Assam

Citation: 2024 LiveLaw (Gau) 98

Case No.: Crl.Rev.P./331/2013

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