Bhasi s/o Inasu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **FRIDAY, THE 7TH SEPTEMBER 2011 / 16 TH BHADRA 1933** **Crl.Rev.Pet.No. 10 of 2003()** **----------------------------** **CRA.229/2000 of ADDL. SESSIONS COURT (ADHOC), THRISSUR ST.2525/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR** **....................** ## **REVN. PETITIONER/APPELLANT/ACCUSED:** **---------------------------------------** **BHASI, S/O. INASU, KANJIRAPARAMBIL HOUSE, PAPA NAGAR, VARADIUM, AVANOOR, THRISSUR.** **BY ADV. SRI.P.K.RAVISANKAR** **RESPONDENT:** **--------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON 07/09/2011 PASSED THE FOLLOWING:** AMG ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.R.P.NO.10 OF 2003 ----------------------------------Dated this the 7[th] day of September, 2011** ## **O R D E R** The accused in S.T.No.2525 of 1998 on the file of the Judicial First Class Magistrate Court – I, Thrissur has filed the revision against his conviction for the offence under Section 51(a) of the Kerala Police Act, for short, the 'Act', concurrently by the two inferior courts. Sentence imposed against him by the learned Magistrate to undergo simple imprisonment for three days and to pay a fine of Rs.100/- with default term of simple imprisonment for seven days had been confirmed by the learned Sessions Judge dismissing his appeal affirming the conviction. Feeling aggrieved, he has come up with this revision. 2. The gist of the prosecution case is that on the evening of 12.05.1998 at about 4.45 p.m., the petitioner/accused was found in the premises of Cherpu Government Hospital in a drunken state unable to maintain himself and behaving in a disorderly **Crl.R.P.No.10/2003** **2** manner, causing nuisance and disturbance to the patients of the Hospital and also the public and, thus, he committed the offence under Section 51(a) of the Act. PW2, the police Head Constable, who found the accused in the aforesaid situation, took him to hospital and subjected him to medical examination. Ext.P1 certificate of drunkenness was issued by the doctor who examined the accused. 3. On the basis of the report of PW2, the head constable, PW3, the Sub Inspector of police has registered a crime. The accused had pleaded not guilty. Ext.P1 certificate was proved through PW1, the doctor. On the materials placed by the prosecution, the learned Magistrate found the accused guilty, and convicted and sentenced him as indicated above. Conviction and sentence imposed against the accused, after reappraisal of the evidence, had been confirmed by the learned Sessions Judge also. 4. Knowing the limited scope of exercise of revisional jurisdiction in assailing the conviction of the accused, **Crl.R.P.No.10/2003** **3** concurrently rendered by two courts, where it has been supported by convincing materials tendered by the prosecution, the learned counsel for the accused fairly submitted that he is canvassing only for extending the benevolent provisions of the Probation of Offenders Act in favour of the accused, and not challenging the conviction on its merits. Placing reliance of **Joy v. State of Kerala (2002 (1) KLJ 813)** , the learned counsel contended that the applicability of the provisions of the Probation of Offenders Act is not excluded in respect of an offender found guilty of the offence under Section 51(a) of the Act. At the time when the offence was charged against the accused, he was aged 39 years and he has no previous conviction before the present case and subsequent also he has not involved in any other criminal activities, is the submission of the learned counsel to seek his release on probation subject to such terms and conditions as may be fixed. The learned Public prosecutor, on instructions, after verification, has reported that the accused is a first offender and that, as against him, there is no other case at the local police station where he is having his permanent abode after the incident involved in the present case. **Crl.R.P.No.10/2003** **4** 5. The larger question remains whether this is a fit case for extending the petitioner/accused the benefit of the benevolent provisions of the Probation of Offenders Act. The Apex Court in **Commandant 20 BN ITB Police v. Sanjay Binjoa (AIR 2001 SC 2058)** has observed that the benefit under Sections 3 and 4 of the Probation of Offenders Act cannot be claimed by any offender as of right and the court has to take into consideration the facts and circumstances of the case having regard to the nature of the offence, its general effect on the society and the character of the offender etc. Where the offence is of a trivial nature, it has been observed that it may be a fit case where the benefit can be extended. In the above cited case, a constable of Indo-Tibetan Border Police, who was convicted for disorderly behaviour at the house of the Commandant, owing to his inebriated condition and, thus, incapable of taking care of himself, was extended the benefit of Section 3 of the Probation of Offenders Act. So much so, in a deserving case, there is no bar in extending the benefit of the Probation of Offenders Act to an offender found guilty of the offences under Section 51(a) of the **Crl.R.P.No.10/2003** **5** Act, but it cannot be adopted as a matter of cause without justifying grounds recording the reasons thereof. 6. The very purpose of the Probation of Offenders Act is to correct and reform the offender so that he does not involve in criminal acts and turn out to be a criminal. The benefit under the Act can be extended only to cases, to which, it has been made applicable by the provisions and also where there is chance for reforming the offender. Where the criminal acts conducted by said offender are heinous or grave or motivated by monetary gain, the applicability of the Act is not been resorted to. Similar is the case in dealing with white coloured criminal and economical offenders, to whom also the benefit of the Act cannot be extended. 7. In the present case, it is seen, the occurrence involved had taken place on 12.05.1998. The revision petitioner/accused was aged 39 years when the offence was committed. He is shown to be a first offender. For the last thirteen years, there is no case that he is involved in any similar offence or of other **Crl.R.P.No.10/2003** **6** criminal activities. In that background, I find whether the petitioner has to be given a chance to reform himself, extending him the benefit of the Probation of Offenders Act has to be gone into. I make it clear that the direction made as above is solely on the basis of the facts presented and it does not lay down any general guideline that wherever an offender under Section 51(a) of the Act is convicted, the applicability of the Probation of offenders Act has to be considered. Whether such an offender is entitled to the benefit of the Probation of Offenders Act is a matter to be determined on the facts of that case, and that alone. 8. Confirming the conviction of the accused, the sentence imposed against him is set aside. Case is remitted to the trial court with direction to call for a report from the Probation Officer and to consider the question whether the accused is a fit person for the grant of the benefit under Section 4 of the Probation of Offenders Act. In case, the court finds that he is not a fit person for the grant of the benefit, as indicated above, it will impose appropriate punishment notwithstanding that the sentence imposed previously had been set aside under the **Crl.R.P.No.10/2003** **7** present order. In case, it is found that he is to be released on probation, it shall be subject to such conditions as may be imposed by the court including execution of the bond with or without surety, and in the event of breach of any of the conditions imposed, to proceed against him imposing of appropriate punishment for the offence with which his conviction stands confirmed. 9. The petitioner is directed to appear before the Judicial First Class Magistrate Court - I, Thrissur on 10.10.2011, and the learned Magistrate shall take note of the observations made above and consider the applicability of the extending the benevolent provisions of the Probation of Offenders Act in favour of the accused and pass appropriate orders in accordance with law. With the above directions, the revision is disposed of. ## **S.S.SATHEESACHANDRAN JUDGE** prp **Crl.R.P.No.10/2003** **8**