THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Revisional Jurisdiction)
th
DATED : 24 April, 2024
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SINGLE BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl. Rev. P. No.01 of 2023
Petitioner/Revisionist : Chitraman Chettri
versus
Respondent : State of Sikkim
Application under Sections 397 and 401
of the Code of Criminal Procedure, 1973
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Appearance
Mr. M. N. Dhungel, Advocate for the Petitioner/Revisionist.
Petitioner/Revisionist present in person.
Mr. S. K. Chettri, Additional Public Prosecutor for the Respondent.
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JUDGMENT (ORAL)
Meenakshi Madan Rai, J.
1. The Revisionist was employed as a Senior Product
Executive of Shriram Transport Finance Company Limited on 20-
07-2015 and entrusted with the responsibility of collecting Equated
Monthly Installment (EMI) from customers who had availed of loan
from the said company. On 04-09-2017, one Purna Bahadur
Mukhia, Branch Manager, Shriram Transport Finance Company
Limited, Jorethang Branch, filed a Complaint, Exhibit 1, on behalf
–
of the said Company, stating that the Revisionist, a permanent
resident of Timburbong, Soreng, an employee of the company had
collected EMIs from borrowers, amounting to a sum of ₹
5,76,780/-(Rupees five lakhs, seventy six thousand, seven
hundred and eighty) only, but had not deposited the collected
amounts at the branch office. The Revisionist had misappropriated
the said amount which had been deposited with him by fourteen
Crl. Rev. P. No.01 of 2023 2
Chitraman Chettri vs. State of Sikkim
customers. Investigation was taken up after registration of the
case and on completion of investigation, Charge-Sheet was
submitted against the Revisionist under Section 408 of the Indian
Penal Code, 1860 (hereinafter, the “IPC”).
(i) The Learned Trial Court framed charge against the
Revisionist under Section 408 of the IPC, to which he entered a
claimed trial. The Prosecution examined
plea of „not guilty‟ and
twenty-four witnesses including the Investigating Officer (I.O.) to
establish their case. This was followed by the examination of the
Accused under Section 313 of the Code of Criminal Procedure,
1973 (hereinafter, the “Cr.P.C.”), during which he claimed
innocence and asserted that he was falsely implicated in the
matter. The Court of the Learned Judicial Magistrate, Jorethang
Sub-Division, South Sikkim, at Jorethang, on consideration of all
the evidence and materials before it convicted the Revisionist
under Section 408 of the IPC, vide its Judgment, dated 28-02-
2022, in GR Case No.15 of 2019 (State of Sikkim vs. Chitraman
Chettri). He was sentenced to undergo simple imprisonment of one
- (Rupees five thousand) only, for the
year, with fine of ₹ 5,000/
offence under Section 408 of the IPC, with a default clause of
imprisonment, vide the Order on Sentence of the same date.
(ii) On 24-03-2022 against the said Order of conviction, an
Appeal was filed before the Court of the Learned Sessions Judge, at
Namchi, Sikkim, being Criminal Appeal No.03 of 2022 (Chitraman
Chettri vs. State of Sikkim) and on 28-03-2022, the Revisionist was
enlarged on bail. The Court of the Learned Sessions Judge, vide its
impugned Judgment, dated 28-02-2023, in Criminal Appeal Case
No.03 of 2022 (Chitraman Chettri vs. State of Sikkim) upheld the
Crl. Rev. P. No.01 of 2023 3
Chitraman Chettri vs. State of Sikkim
Judgment of conviction and Order on Sentence. The prayer for
probation, in terms of Section 4 of the Probation of Offenders Act,
, was however rejected by the
1958 (for short “Probation Act”)
Court of the Learned Sessions Judge. Against the said Judgment
this Revision has been preferred.
2. Learned Counsel for the Revisionist submits that the
only point that he seeks to press in Revision before this Court is
that the Revisionist be extended the benefit of Section 4 of the
Probation of Offenders Act, 1958. That, he has no criminal
antecedents and his aged parents who live in a remote part of
Soreng District, Sikkim, are dependent on him for their livelihood
which he is presently eking out by selling vegetables. That, he has
a wife, who is unemployed and a daughter aged about six years,
who are also completely dependent on him. That, incarcerating
him would in fact be extending the penalty to the family members
as in his absence they would be deprived of their day to day
requirements and means of livelihood. That, till date he has
returned a sum of -(Rupees two lakhs and fifty
₹ 2,50,000/
thousand) only, to the persons from whom he had collected the
EMIs. That, should this Court be inclined to consider his prayer for
probation, he undertakes to repay the remaining amount within a
period of twelve months to the persons from whom he had
collected the EMIs.
3. Learned Additional Public Prosecutor for the State-
Respondent submits that he has no objection to the prayers put
forth, subject to the condition that, the repayment shall be made
by the Revisionist within twelve months of this Judgment. Should
Crl. Rev. P. No.01 of 2023 4
Chitraman Chettri vs. State of Sikkim
he default, then he may be ordered to complete his sentence as
pronounced by the Learned Trial Court.
4. Heard the submissions of Learned Counsel for the
parties.
5. Section 4 of the Probation Act of Offenders Act, 1958,
reads as follows;
“4. Power of court to release certain offenders
on probation of good conduct.—(1) When any person is
found guilty of having committed an offence not punishable
with death or imprisonment for life and the court by which
the person is found guilty is of opinion that, having regard
to the circumstances of the case including the nature of the
offence and the character of the offender, it is expedient to
release him on probation of good conduct, then,
notwithstanding anything contained in any other law for the
time being in force, the court may, instead of sentencing
him at once to any punishment direct that he be released
on his entering into a bond, with or without sureties, to
appear and receive sentence when called upon during such
period not exceeding three years, as the court may direct,
and in the meantime to keep the peace and be of good
behaviour:
Provided that the court shall not direct such release
of an offender unless it is satisfied that the offender or his
surety, if any, has a fixed place of abode or regular
occupation in the place over which the court exercises
jurisdiction or in which the offender is likely to live during
the period for which he enters into the bond.
(2) Before making any order under sub-section (1),
the court shall take into consideration the report, if any, of
the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made,
the court may, if it is of opinion that in the interests of the
offender and of the public it is expedient so to do, in
addition pass a supervision order directing that the
offender shall remain under the supervision of a probation
officer named in the order during such period, not being
less than one year, as may be specified therein, and may in
such supervision order impose such conditions as it deems
necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-
section (3) shall require the offender, before he is released,
to enter into a bond, with or without sureties, to observe
the conditions specified in such order and such additional
conditions with respect to residence, abstention from
intoxicants or any other matter as the court may, having
regard to the particular circumstances, consider fit to
impose for preventing a repetition of the same offence or a
commission of other offences by the offender.
(5) The court making a supervision order under sub-
section (3) shall explain to the offender the terms and
conditions of the order and shall forthwith furnish one copy
of the supervision order to each of the offenders, the
sureties, if any, and the probation officer concerned.”
Crl. Rev. P. No.01 of 2023 5
Chitraman Chettri vs. State of Sikkim
6. The provision is thus applicable where a person is
found guilty of having committed an offence but the penalty for the
offence committed does not extend to life imprisonment or death.
The Court at its discretion may release such a convict on probation
of good conduct, on his furnishing a bond as provided in the
section. It needs no reiteration here that while invoking the
provision, the circumstances of the case, the character of the
offender and the nature of the offence have to be taken into
consideration.
7. The Supreme Court in
Jagat Pal Singh and Others vs.
1
extended the benefit of probation while upholding
State of Haryana
the conviction of the convicts under Section 323, 452 and 506 of
the IPC and released them on executing a bond before the
Magistrate for maintaining good behaviour and peace for the period
of six months.
2
(i) In , the
Sitaram Paswan and Another vs. State of Bihar
Supreme Court observed that for exercising the power which is
discretionary, the Court has to consider the circumstances of the
case, the nature of the offence and the character of the offender.
While consideration the nature of the offence, the Court must take
a realistic view of the gravity of the offence, the impact which the
offence had on the victim. The benefit available to the Accused
under Section 4 of the Probation Act is subject to the limitation
may clearly indicates
embodied in the provisions and the word “ ”
that the discretion vests with the Court whether to release the
offender in exercise of the powers under Section 3 or 4 of the
Probation Act, having regard to the nature of the offence and the
1
AIR 2000 SC 3622(1)
2
AIR 2005 SC 3534
Crl. Rev. P. No.01 of 2023 6
Chitraman Chettri vs. State of Sikkim
character of the offender and overall circumstances. The power
under Section 4 of the Probation Act vests with the Court when any
person is found guilty of the offence committed, not punishable
with death or imprisonment for life. This power can be exercised
by the Court while finding the person guilty and if the Court thinks
that having regard to the circumstances of the case, including the
nature of the offence and the character of the offender, benefit
should be extended to the Accused, the power can be exercised by
the Court even at the Appellate or Revisional stage or also by the
Supreme Court while hearing Appeals under Article 136 of the
Constitution of India.
8. I have given due consideration to the submissions put
forth before me, as also the documents on record. I have also
taken note of the social background of the Revisionist, the gravity
and impact of the offence and the fact that he is a first offender
with no criminal antecedents. The conduct of the Revisionist who
remained on bail during the course of trial and post the trial is also
noted. After his conviction, he was enlarged on bail but he made
no attempts to flee. There were no adverse reports against him
from any quarter during the trial or when he was on bail, post the
conviction. The mitigating circumstances such as the dependence
of his aged parents, unemployed wife and minor child are also
taken into consideration as also the fact that he has repaid almost
50% of the amount defalcated by him and he undertakes to repay
the remaining amount. The Learned Additional Public Prosecutor
has also not placed any evidence before this Court to establish that
the Revisionist is a recidivist. Perusal of the Learned Trial Court
records also reveals no such antecedents.
Crl. Rev. P. No.01 of 2023 7
Chitraman Chettri vs. State of Sikkim
9. In light of the above facts and circumstances, I am of
the considered view that the discretion vested on this Court can be
exercised in favour of the Revisionist.
10. As the State Government is yet to frame Rules under
the Act as envisaged under Section 17 of the Probation of
Offenders Act, 1958, the Station House Officer (SHO), Jorethang
Police Station, is appointed as the Probation Officer, in terms of
Section 13 of the Probation Act. The Probation Officer as per
Section 14 of the Probation Act shall advise and assist the
Revisionist in the payment of compensation as ordered by this
Court and submit a monthly report before the Learned Trial Court
of Judicial Magistrate, Jorethang, Sikkim, on this aspect.
11. The conviction of the Revisionist under Section 408 of
the IPC is upheld. However, the Revisionist shall be released on
probation under Section 4 of the Probation Act, upon furnishing a
- (Rupees fifty thousand)
personal bond in the sum of ₹ 50,000/
- (Rupees twenty
only and two sureties in the sum of ₹ 25,000/
five thousand) only, each, to the satisfaction of the Learned Trial
Court. The Revisionist shall maintain peace and good behaviour for
a period of one year from today and shall not repeat the offence.
Should he fail to maintain the peace or not be of good behaviour or
repeat the offence and should he fail to pay the compensation as
undertaken by him, he shall serve out the sentence imposed by the
Learned Trial Court.
12. The Revisionist shall furnish the bail bonds and sureties
as Ordered by this Court (supra) before the Court of the Learned
Judicial Magistrate, Jorethang, Sikkim on 30-04-2024.
Crl. Rev. P. No.01 of 2023 8
Chitraman Chettri vs. State of Sikkim
13. The Revisionist is released from his bail bonds.
14. Revision application allowed on the above terms.
15. Copy of this Judgment be remitted forthwith to the
Station House Officer, Jorethang Police Station, Sikkim for
information and compliance.
16. Copy of this Judgment also be remitted to the Learned
Trial Court for information and compliance along with its records.
( Meenakshi Madan Rai )
Judge
24-04-2024
Approved for reporting : Yes
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