Tuesday, 12 November 2019

Whether it is mandatory to obtain report of probation officer before releasing accused on probation?

 Another error is that the order quoted hereinabove has been passed in violation of the provisions of Section 4 of the Act which mandates that before releasing any offender on probation of good conduct, the Court must obtain a report from the Probation Officer and can then order his release on his entering bonds with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, or as the Court may direct, and in the meantime to keep peace and good behaviour. The proviso to Sub-section (1) of Section 4 clearly provides that Court cannot order release of such an offender unless it is satisfied that the offender or his surety has a fixed place of abode or regular occupation in the place over which the Court can exercise jurisdiction. Sub-section (2) lays down that before making any order Under Sub-section (1), the Court shall take into consideration the report of the Probation Officer. This Court in a number of judgments has held that before passing an order of probation, it is essential to obtain the report of the Probation Officer concerned. Reference in this behalf may be made to M.C.D. v. State of Delhi and Anr. MANU/SC/0376/2005 : AIR 2005 SC 2658.
IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 410 of 2011

Decided On: 04.11.2019

State of Madhya Pradesh  Vs. Man Singh

Hon'ble Judges/Coram:
Deepak Gupta and Aniruddha Bose, JJ.



1. Whether a Judge of the High Court can exercise powers Under Section 482 of the Code of Criminal Procedure, 1973 (for short 'CrPC') to alter the sentence which has been passed by the High Court itself is the issue involved in this appeal.

2. The Respondent, Man Singh was prosecuted for having committed offences punishable Under Sections 468, 471 and 419 of Indian Penal Code, 1860 (for short IPC). The allegation against him was that he had used a transfer certificate of one Kalu Singh and forged the certificate to show that it bore his name and date of birth. Using this certificate, he had procured appointment to the post of Buffalo Attendant in the Veterinary Department. The trial court convicted the Accused for the offences punishable Under Sections 468, 471 and 419 Indian Penal Code. On the issue of sentence, it was specifically urged before the trial court that benefit of Probation of Offenders Act, 1958 (for short 'the Act') may be given to the Respondent, Man Singh. The trial court came to the conclusion that the Accused had got service on the basis of forged documents depriving a deserving unemployed person of getting such employment and, therefore, according to the trial court, this is not a fit case to grant probation. Accordingly, the trial court imposed punishment under various provisions of Indian Penal Code for different offences but essentially the Accused was to undergo rigorous imprisonment for one year and was to pay a total fine of Rs. 2000/-.

3. The Accused-Respondent, Man Singh filed an appeal. The Sessions Judge dismissed the appeal. On the issue of sentence he found that the Accused had been dealt with leniently and refused to interfere with the sentence. A criminal revision was filed in the High Court. The High Court affirmed the conviction but reduced the substantive sentence from one year to the period already undergone and enhanced the fine to Rs. 10,000/-.

4. The Accused-Respondent, Man Singh deposited the fine and then filed a petition Under Section 482 of Code of Criminal Procedure praying that the fine had been deposited and since he is in Government job, he may be granted benefit of the Act. The learned Judge, without giving any other reasons, directed as follows:

After having heard learned Counsel for the parties, prayer is allowed and the benefit of Probation of Offenders Act is extended to the Petitioner for the purpose that the sentence, which has already undergone would not affect service career of the Petitioner.

With the aforesaid observations petition stands disposed of C.C. today.

This order is challenged before us. At the outset, we note that the manner in which the learned Judge entertained the petition Under Section 482 Code of Criminal Procedure is highly improper and uncalled for. There is no power of review granted to the Courts under Code of Criminal Procedure. As soon as the High Court had disposed of the original revision petition, upheld the conviction, reduced the sentence to the period already undergone and enhanced the fine, it became functus officio and, as such, it could not have entertained the petition Under Section 482 Code of Criminal Procedure for altering the sentence.

5. It is well settled law that the High Court has no jurisdiction to review its order either Under Section 362 or Under Section 482 of Code of Criminal Procedure1. The inherent power Under Section 482 Code of Criminal Procedure cannot be used by the High Court to reopen or alter an order disposing of a petition decided on merits2. After disposing of a case on merits, the Court becomes functus officio and Section 362 Code of Criminal Procedure expressly bars review and specifically provides that no Court after it has signed its judgment shall alter or review the same except to correct a clerical or arithmetical error3. Recall of judgment would amount to alteration or review of judgment which is not permissible Under Section 362 Code of Criminal Procedure. It cannot be validated by the High Court invoking its inherent powers4.

6. We have, therefore, no doubt in our mind that the High Court had no power to entertain the petition Under Section 482 Code of Criminal Procedure and alter the sentence imposed by it. We may also add that the manner in which the probation has been granted is not at all legal. The trial court had given reasons for not giving benefit of probation. When the High Court was deciding the revision petition against the order of conviction, it could have, after calling for a report of the Probation Officer in terms of Section 4 of the Act, granted probation. Even in such a case it had to give reasons why it disagreed with the trial court and the first appellate court on the issue of sentence. The High Court, in fact, reduced the sentence to the period already undergone meaning thereby that the conviction was upheld and sentence was imposed. After sentence had been imposed and served and fine paid, there was no question of granting probation.

7. Another error is that the order quoted hereinabove has been passed in violation of the provisions of Section 4 of the Act which mandates that before releasing any offender on probation of good conduct, the Court must obtain a report from the Probation Officer and can then order his release on his entering bonds with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, or as the Court may direct, and in the meantime to keep peace and good behaviour. The proviso to Sub-section (1) of Section 4 clearly provides that Court cannot order release of such an offender unless it is satisfied that the offender or his surety has a fixed place of abode or regular occupation in the place over which the Court can exercise jurisdiction. Sub-section (2) lays down that before making any order Under Sub-section (1), the Court shall take into consideration the report of the Probation Officer. This Court in a number of judgments has held that before passing an order of probation, it is essential to obtain the report of the Probation Officer concerned. Reference in this behalf may be made to M.C.D. v. State of Delhi and Anr. MANU/SC/0376/2005 : AIR 2005 SC 2658.

8. In the present case, on 03.01.2011, the counsel for the Accused-Respondent sought an adjournment on the ground that the Accused proposes to file a special leave petition (SLP) against the order passed in criminal revision petition upholding his conviction. That SLP was filed but dismissed on 28.01.2011. Once that SLP has been dismissed, we cannot grant any relief to the Accused-Respondent.

9. We are also constrained to observe that the High Court in its order directed that the sentence which the Accused has already undergone, would not affect his service career. We fail to understand under what authority the High Court could have passed such an order. Even in a case where the High Court grants benefit of probation to the Accused, the Court has no jurisdiction to pass an order that the employee be retained in service. This Court in State Bank of India and Ors. v. P. Soupramaniane MANU/SC/0609/2019 : AIR 2019 SC 2187 clearly held that grant of benefit of probation under the Act does not have bearing so far as the service of such employee is concerned. This Court held that the employee cannot claim a right to continue in service on the ground that he was released on probation. It was observed:

The release under probation does not entitle an employee to claim a right to continue in service. In fact the employer is under an obligation to discontinue the services of an employee convicted of an offence involving moral turpitude. The observations made by a criminal court are not binding on the employer who has the liberty of dealing with his employees suitably.

10. In the present case the Accused obtained a job on the basis of forged documents. Even if he was to be given benefit of the Act, then also he could not retain his job because the job was obtained on the basis of forged documents. We are constrained to observe that the High Court passed the order in a mechanical and pedantic manner without considering what are the legal issues involved.

11. In view of the above discussion, the appeal is allowed and the order of the High Court is set aside. Pending application(s), if any, stand(s) disposed of.



1State of Kerala v. M.M. Manikantan Nair, MANU/SC/0307/2001 : (2001) 4 SCC 752
2State Rep. by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran and Ors., MANU/SC/3909/2008 : 2009 CriLJ 355 SC
3Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. MANU/SC/0665/2000 : (2001) 1 SCC 169
4Sooraj Devi v. Pyare Lal and Anr. MANU/SC/0228/1981 : AIR 1981 SC 736


Print Page

No comments:

Post a comment