Probation; Union Territory Lakshadweep Vs. Pattakkal Sayed Ahammed Koya Thangal [Kerala High Court, 22-03-2016]

Contents

Probation of Offenders Act, 1958 – Sections 3 & 4 –  Code of Criminal Procedure, 1973 – Section 377 (1) – Appeal – Inadequacy of Sentence – An appeal under Section 377(1) of Cr.P.C challenging the grant of benefit of probation will not be maintainable. A statutory legal remedy by way of appeal is provided under Section 11(2) of the Probation of Offenders Act.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.D. RAJAN, J.

Crl.A.No.625 of 2001 & 1448 of 2003

Dated 22 nd March, 2016

AGAINST THE JUDGMENT IN CC 7/1991 of JUDL.MAGI.OF 1ST CLASS,ANDROTH DATED 08-05-2001

APPELLANT/COMPLAINANT

UNION TERRITORY LAKSHADWEEP ADMINISTRATION BY ADMINISTRATOR (CR.NO.4 OF 1990, ANDROTH POLICE STATION).

BY ADVS.SRI.O.BALANARAYANAN SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN

RESPONDENT(S)/ACCUSED

PATTAKKAL SAYED AHAMMED KOYA THANGAL MECHERY, ANDROTT. AND 88 OTHERS

R,R1,3 TO 7,9 TO 39, BY ADV. SRI.MAT.PAI R,R42,44 TO 48,50 TO BY ADV. SRI.MAT.PAI R,58,60 TO 71,74 TO BY ADV. SRI.MAT.PAI R,89. BY ADV. SRI.MAT.PAI R,R1,3-7,9-39 BY ADV. SRI.N.P.SAMUEL

JUDGMENT

The main challenge that arises in this appeal is that when a Magistrate releases an accused under Section 4 of the Probation of Offenders Act 1958, whether an appeal under Section 377(1) of Code of Criminal Procedure is maintainable ? These appeals have been filed against the judgment of conviction of A1 and acquittal of A2 to A89 in C.C.7 of 1991 of Judicial First Class Magistrate, Androth. The first accused was convicted under Section 143 and 188 of Indian Penal Code (“IPC” in short) and released under Section 4 of the Probation of Offender’s Act and acquitted him for offences section 144, 145, 147, 148, 332, 353 and 506(ii) read with 149 IPC. Accused 2 to 89 were acquitted by the learned Magistrate for offence punishable under Section 143, 144, 145, 147, 148, 188, 332, 353 and 506(ii) read with 149 IPC. Against that judgment Criminal Appeal 625 of 2001 has been preferred by the Administrator, Union territory, Lakshadweep under Section 377 and 378(1) and (3) of the Code of Criminal Procedure (hereinafter referred to as the Code). Against the conviction under section 143 and 188 IPC, first accused preferred Crl.A.1 of 2001 before Sessions Court, Kavarathy which was transferred to this court, and taken on file as Crl.A.1448 of 2003 and both appeals have been heard together. The respondents in Crl.A.625 of 2001 are the accused in C.C No.7 of 1991 of the trial court.

2. The accused were charge sheeted before the Judicial Magistrate of First Class, Androth in C.C.No.7 of 1991 under Section 143, 144, 145, 147, 148, 188, 332, 353, 506(ii) read with 149 IPC. The charge against the accused is that on 23.4.1990 at 13 hours, the accused in prosecution of the common object of committing riot armed with deadly weapons unlawfully assembled inside and outside the Juma Masjid, Androth in violation of the order promulgated by the Executive Magistrate empowered under section 144 of the Code to abstain from the Masjid attached to Darga at a distance of 15 metres. Violating the above direction of law, they remained in the Mosque and its premises and used criminal force against the police personnel deployed for duty and also deterred the executive Magistrate from discharging their duty and pelted wooden reapers, G.I pipes and stones and thereby committed offence. In this incident, Androth police registered a crime and after completing investigation, laid charge before Judicial First Class Magistrate, Androth. Accused No.89 is absconding, hence his case was split up.

3. During trial, prosecution examined PW1 to PW24 and marked Ext.P1 to P4 as documentary evidence. Material objects MO1 to MO28 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence. Learned Magistrate acquitted A2 to A90 (except A89) and convicted the first accused under Section 188 and 143 IPC and released under Section 4 of the Probation of Offenders Act. Being aggrieved by that, the 1 st accused preferred Crl.A.1 of 2001 of Sessions Court, Androth. The Administrator, Union territory also filed Crl.A.625 of 2001 against the acquittal of the accused and for enhancement of sentence against A1.

4. After filing these appeals, 18 persons died and the appeal against them being abated under Section 394 Cr.P.C, the union territory is prosecuting the other accused. Section 394 Cr.P.C reads as follows:

# Abatement of appeals

(1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant:

Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of her near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.

Explanation – In this section, “near relative” means a parent, spouse, lineal descendant, brother or sister”.

Once an appeal against an acquittal is admitted by the High Court, it is the duty of the High Court to decide the same, irrespective of the fact that the appellant either does not intend to prosecute it or is unable to prosecute it for one reason or the other. From this section it is clear that an appeal against an acquittal under Section 378 or an appeal for the enhancement of the sentence under Section 377, being abated on the death of the accused and not otherwise.

5. Learned counsel appearing for the union territory contended that the release of the first accused under Section 4 of the Probation of Offender’s Act is illegal. The acquittal of the accused was without considering the evidence in this case. The incident resulted in police firing which culminated in loss of two lives and injuries to police men and some members of the public, the finding of the learned Magistrate was without perusing the evidence. Therefore the acquittal may be set aside, find them guilty and pass appropriate sentence at the same time be prays to enhance the sentence against A1.

6. Learned counsel appearing for the respondents in Crl.A.625 of 2001 including the appellant in Crl.A.1448 of 2003 contended that the order issued under Section 144 of Cr.P.C was not produced in the trial court. The witnesses present there did not identify the accused including A1 during trial. The evidence of official witness alone was relied by the trial court for convicting the first accused. When prima facie no materials are available, the conviction of the 1 st accused is unsustainable in law.

7. In view of rival submission of both parties I think it proper to consider the legal position. Section 378 confers power on the State to present an appeal to the High Court from an order of acquittal. The section may be quoted as follows:

# Appeal in case of acquittal

(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5), –

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and nonbailable offence;

b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court (not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision).

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946(25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, (the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal –

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court (not being an order under clause(a) or an order of acquittal passed by the Court of Session in revision).

(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court”.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.

(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)”.

8. Appeal against acquittal has been explained under Section 378 of the Code. The restriction provided for preferring an appeal against acquittal by Section 378 are armed to protect the interest of the accused person. A reading of the above first four sub sections of section 378, it is seen that an appeal against acquittal could be filed by government in cases preferred upon a complaint by the government as well as by the complainant. The right on such appeal can be exercised only after obtaining leave of the court. When acquittal is passed by any Magistrate or by any Sessions Judge and where the offences of which accused is a major or a minor, appeal in every case of such acquittal could only be made to High Court. According to sub-section (6), an appeal by the State under sub-section (1) or sub-section (2) is barred in case private complaints fail to obtain special leave under sub section 4. When an appeal is filed High court should answer to the question whether the finding of the trial court are wrong or there is any error or it is sustainable or not. High Court has full power to re appreciate, review and reconsider the evidence on which the order of acquittal is founded and to reach its own conclusion on the basis of evidence. The question of law and facts are open and the high court cannot forget the presumption of innocence in favour of the accused.

9. In this context I have considered the entire facts whether there is any wrong committed by the trial court while scrutinizing the oral and documentary evidence in this case. The incident started on the basis of ‘khadam’ celebration, 27th ramzan day. The prosecution examined PW1, who is the S.I of Police, Androth as the principal witness to depose about the incident. His evidence shows that the Executive Magistrate issued an order under Section 144 of Cr.P.C restraining A1 and his followers from assembling and using weapons in the Masjid. Pookoy Thangal was allowed to perform the rites. As per the sanction, Khazi Pookoy Thangal and his followers shall enter into the Masjid from 1 pm on 23 rd March, 2016 to 12 pm on 24th March, 2016. In such a manner, celebration was arranged in the Masjid. When PW1 and other police officials reached there, accused and other group did not obey the direction issued for celebrating the ‘khadom’. On the other hand, hundreds and hundreds of people gathered under the leadership of A1. They entered inside the Mosque with deadly weapons. Finally, Sub Divisional Officer instructed them to vacate the premises.

10. On a perusal of the evidence it is clear that A1 agreed to obey the direction subject to the concurrence of his followers. Later they were hesitant to obey the direction issued by the Administrator. In such a situation, the further incident occurred there. Even after repeated attempt, they declined to vacate the premises and attempted to attack the Executive Magistrate and police officials. PW1 identified A1 and Dr.Muthukoya, Shaik Koya Thangal, A.B.Kunhikoya at the place of occurrence and they are the leaders present at the time of occurrence to resist the police.

11. The violent mob neglected the warning issued by police. In the circumstance, they used tear gas and finally they fired towards the mob. Two persons died and several others were injured. For this, PW1 registered a crime, Ext.P1 is the F.I.R, Ext.P2 is the plan prepared by PW1. Ext.P3 is the scene mahazar, Ext.P4 is the seizure list in Crime No.4 of 1990. Analysing the evidence of PW1, it is clear that he identified the first accused and the place of occurrence. I find no reason to discard the oral testimony of PW1. PW3 supported the oral evidence of PW1. I have examined the oral evidence of other prosecution witnesses but they failed to identify the members who participated in the unlawful assembly, in the circumstance learned Trial Magistrate acquitted the accused.

12. Privy Council in

# Sheo Swarup v. King Emperor, AIR 1934 Privy Council 227

rendered the first decision and held how to re appreciate the evidence by the appellate court while hearing an appeal against acquittal. In that case accused were acquitted by the trial court and the local government directed Public Prosecutor to present an appeal to the High Court. Lord Russel sum up the legal position as follows:-

“10. “.. the High Court should and will always give proper weight and consideration to such matters as

(1) the view of the trial Judge as to the credibility of the witnesses;

(2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial;

(3) the right of the accused to the benefit of any doubt; and

(4) the slowness of an appellate court in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses”. The opinion of the Lord Russell has been followed over the years”.

13. The above principles were restated by the Apex Court in

# Muralidhar alias Gidda v. State of Karnataka (AIR 2014 SC 2200)

wherein it was held as follows:-

12. “the appellate court must bear in mind the following:

(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,

(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,

(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and

(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if view taken by the court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court”.

Apex Court in the above decision referred its earlier decision in

# Surajpal Singh v. State, AIR 1952 SC 52

# Tulsiram Kanu v. State, AIR 1954 SC 1

# Chandrappa v. State of Karnataka, (2007) 4 SCC 415

# Madan Mohan Singh v. State of U.P., AIR 1954 SC 637

# Atley v. State of U.P., AIR 1955 SC 807

# Aher Raja Kihma v. State of Saurashtra, AIR 1956 SC 217

# Balbir Singh v. State of Punjab, AIR 1957 SC 216

# M.G.Agarwal v. State of Maharashtra, AIR 1963 SC 200

# Noor Khan v. State of Rajasthan, AIR 1964 SC 286

# Khedu Mohton v. State of Bihar, (1970) 2 SCC 450

# Shivaji Sahabrao Bobade v. State of Maharshtra, (1973) 2 SCC 793

# Lekha Yadav v. State of Bihar, (1973) 2 SCC 424

# Khem Karan v. State of U.P., (1974) 4 SCC 603

# Bishan Singh v. State of Punjab, (1974) 3 SCC 288

# Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228

# K.Gopal Reddy v. State of A.P., (1979) 1 SCC 355

# Tota Singh v. State of Punjab, (1987) 2 SCC 529

# Ram Kumar v. State of Haryana, 1995 supp (1) SCC 248

# Madan Lal v. State of J and K, (1997) 7 SCC 677

# Sambasivan v. State of Kerala, (1998) 5 SCC 412

# Bhagwan Singh v. State of M.P., (2002) 4 SCC 85

# Harijana Thirupala v. Public Prosecutor, High Court of A.P., (2002) 6 SCC 470

# C.Antony v. K.G.Raghavan Nair, (2003) 1 SCC 1

# State of Karnataka v. K.Gopalakrishna, (2005) 9 SCC 291

# State of Goa v. Sanjay Thakran, (2007) 3 SCC 755

Analysing the evidence in this case, I am of the view that learned Trial Magistrate rightly analysed the oral evidence in this case and convicted the first accused and acquitted others. I find no reason to interfere in the finding recorded by the learned Magistrate. No circumstances are brought before me to set aside the acquittal of A2 to A89.

14. Now the question is that when the Magistrate, Androth released the 1 st accused under Section 4 of the Probation of Offenders Act 1958 and no sentence has been awarded by the trial court, in the circumstances whether an appeal under Section 377(1) Cr.P.C is maintainable before High Court.Appeal by state government against sentence has been explained under Section 377 of the Code of Criminal Procedure (Code hereinafter) which reads as follows:-

# 377. Appeal by the State Government against sentence

(1) Save as otherwise provided in subsection (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present (an appeal against the sentence on the ground of its inadequacy –

(a) to the Court of session, if the sentence is passed by the Magistrate; and

(b) to the High Court, if the sentence is passed by any other Court.

(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, (the Central Government may also direct) the Public Prosecutor to present (an appeal against the sentence on the ground of its inadequacy –

(a) to the Court of session, if the sentence is passed by the Magistrate; and

(b) to the High Court, if the sentence is passed by any other Court,

(3) When an appeal has been filed against the sentence on the ground of its inadequacy, (the court of Session or, as the case may be, the High Court) shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence”.

15. The right to prefer appeal against the inadequacy of the sentence has been given to the State government under Section 377 of the Code and not to any other person. Section 374 of the Code guarantees for appeals from conviction by a Sessions Judge or an Additional Sessions Judge to the High Court. Section 377 empowers the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Sub-section (3) of S.377 ensures that when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence without giving to the accused a reasonable opportunity of showing cause against such enhancement. Therefore while showing cause the accused has a right to plead for his acquittal or for the reduction of the sentence. This position has been explained by the Apex Court in its decisions in

# UJS Chopra V. State of Bombay, AIR 1955 SC 633

# Lingala Vijay kumar V. Public Prosecutor, 1978 SCC (Crl) 570

A reading of Section 377, it would be visible that an appeal on the ground of inadequacy of sentence can be entertained by a court of sessions if a lenient sentence is passed by a Magistrate. Like so, High Court can entertain an appeal for enhancement of sentence on the ground of inadequacy if the sentence is passed by any other Court.

16. Where trial court convicts a person but instead of imposing sentence of imprisonment, the person is released on probation of good conduct under the provision of Special law, then it could be said that no sentence has been awarded, in such circumstance no provisions of Section 377 of the Code are attracted. By the operation of the non-obstrante clause of Section 11 (2) of the Probation of Offender’s Act 1958, it is clear that other provisions of the Code are clearly excluded. Section 11 reads thus:-

11. Courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision –

(1) Notwithstanding anything contained in the Code or any other law, an order under this Act, may be made by any court empowered to try and sentence the offencer to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision.

2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any court trying the offender (other than a High Court), an appeal shall lie to the court to which appeals ordinarily lie from the sentences of the former court.

3) In any case where any person under twenty-one years of age is found guilty of having committed an offence and the court by which he is found guilty declines to deal with him under section 3 or section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything contained in the Code or any other law, the court to which appeals ordinarily lie from the sentences of the former court may, either of its own motion or on an application made to it by the convicted person or the probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit.

4) When an order has been made under section 3 or section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law: Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the court by which the offender was found guilty.”

A statutory legal remedy by way of appeal is provided under Section 11(2) against the order of the trial court passed under Section 3 and 4 of the Probation of Offenders Act and an appeal under Section 377 (1) Cr.P.C is not maintainable.

17. This position has been explained by the Apex Court in

# State of U.P. V. Nand Kishore Misra, 1991 Supp(2) SCC 473

wherein it was held as follows:-

“5. The plain language of Section 377(1) 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 but 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. The respondent has been released on probation under Section 4 of the Act. The Act itself lays down the procedure for appeal against an order passed by the trial court under Section 3 or 4 of the Act. Section 11(2) reproduced above specifically provides that an appeal against an order under Section 3 or 4 of the Act shall lie to the court to which the appeals ordinarily lie from the sentences of the trial court which obviously means the next superior court in the hierarchy. Ordinarily appeals lie from the sentences awarded by the Magistrate to the Court of Sessions. The High Court was, therefore, justified in holding that the appeal filed by the State of U.P before the High Court was not competent”.

Hence an appeal under Section 377(1) of Cr.P.C challenging the grant of benefit of probation will not be maintainable.

18. In the light of the above circumstance, I may conclude that the trial court felt that the accused 2 to 89 could get benefit of doubt, the said finding cannot be held to be illegal or contrary to law. Hence even though in an appeal against acquittal the powers of the appellate court are wide, it can reappreciate and reconsider the entire evidence, however the view taken by the trial court acquitting them was plausible. At the same time a statutory legal remedy is provided under Section 11(2) of the Probation of Offenders Act against the order of Judicial First Class Magistrate, Androth releasing under Section 3 and 4 of the Probation of Offenders Act. Instead of seeking such remedy, an appeal by the administrator, Union territory, Lakshadeep under section 377(1) of the Code, challenging the grant of benefit of Probation will not be maintainable. While appreciating the evidence in this case, I am of the view that the conviction and sentence passed by the learned Magistrate against A1 and releasing him under Section 4 of the Probation of Offenders Act are only to be confirmed.

There is no merit in these appeals and both appeals are dismissed.

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