- Bookmark
- Share
- CaseIQ
Gouranga Charan Bhol v. State Of Orissa And Others Opposite Parties.
Factual and Procedural Background
The dispute arose from an incident dated 11 December 1969 involving members of a single extended family. The prosecution's factual narrative describes a quarrel in which Nityananda (opposite party No.1) allegedly assaulted his mother (P.W.2) and thereafter assaulted Gouranga (P.W.1) with a bamboo lathi, causing injury. After medical examination P.W.1 lodged information at Jagatsingpur Police Station on 12 December 1969. The accused denied involvement: they claimed P.W.1 had quarrelled with Udayanath and that P.W.1 stumbled and fell on stone rings, causing his injuries; they also pleaded ignorance about P.W.2's injuries.
At first instance the learned Magistrate convicted Nityananda under Sections 325 and 323 I.P.C., sentencing him to undergo rigorous imprisonment and to pay fines on each count; Ichhamani was convicted under Section 323 I.P.C. and Pitei under Section 341 I.P.C., both being released after admonition under Section 3 of the Probation of Offenders Act, 1958.
On appeal to the Sessions Judge (heard by the Additional Sessions Judge), the conviction of Nityananda under Section 325 I.P.C. was set aside but his conviction under Section 323 I.P.C. was upheld. The convictions of Ichhamani and Pitei were affirmed and their release under Section 3 of the Probation Act was not disturbed. The Additional Sessions Judge further released Nityananda under Section 4(1) of the Probation Act subject to bond, surety and supervision by the District Probation Officer.
A criminal revision was filed by P.W.1 (the informant); the Court treated the matter as a suo motu revision since the State did not file one. The High Court examined whether the Release under Section 4(1) of the Probation Act was made in accordance with law and whether the Additional Sessions Judge had complied with the mandatory requirements of the Act.
Legal Issues Presented
- Whether a criminal revision filed by the informant is competent (the Court treated the issue as academic and proceeded by treating the matter as a suo motu revision).
- Whether the Additional Sessions Judge lawfully exercised his power under Section 4(1) of the Probation of Offenders Act by releasing Nityananda on probation without calling for or considering a report from the probation officer (Section 4(2)).
- Whether the Additional Sessions Judge properly applied the statutory test — "having regard to the circumstances of the case including the nature of the offence and the character of the offender" — before directing release on probation under Section 4(1).
Arguments of the Parties
Prosecution's Case
- There was a quarrel on 11 December 1969 during which Nityananda assaulted his mother (P.W.2).
- In the course of the quarrel Nityananda emerged with a bamboo lathi and struck P.W.1 (Gouranga) twice — once on the left hand and once on the head — causing him to fall and sustain injuries.
- P.W.1 subsequently lodged an information at the police station recording these events.
Defence's Case
- The opposite parties denied their connection with the occurrence.
- They contended that P.W.1 had quarrelled with Udayanath and that while rushing towards Udayanath P.W.1 stumbled and fell on stone rings, sustaining injuries as a result of the fall rather than an assault.
- They pleaded ignorance regarding the injuries on P.W.2.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Mysore v. Saib Gundaj, 1964 (1) Cri LJ 460 (Mys) | Support for the proposition that the court must follow the statutory procedure under the Probation of Offenders Act before releasing an offender on probation. | The High Court noted this Single Judge decision as supporting its view that the mandatory procedural requirements must be observed before ordering release on probation. |
| Ram Singh v. State of Haryana, (1971) 3 SCC 914 | That Sections 4 and 6 of the Probation of Offenders Act require the court to call for and consider a report from the probation officer and any other information about the offender's character and physical/mental condition. | The Court relied on paragraph 16 of this Supreme Court decision to hold that the probation-officer's report and related information are of primary importance and that omission to call for such a report renders a Section 4(1) order contrary to law. |
| Bisikesan Suna v. State, AIR 1967 Orissa 4; 1967 Cri LJ 100 | An exposition of the expression "the circumstances of the case including the nature of the offence and the character of the offender" used in Sections 3, 4 and 6 of the Probation Act, applying tests analogous to those under Section 562(1) Cr.P.C. | The Court invoked this decision to explain the tests applicable when deciding probation matters (e.g., suitability for probation is not automatic for first offenders; reckless or deliberate acts are typically unsuited). The Court concluded the Additional Sessions Judge had not properly applied these tests. |
Court's Reasoning and Analysis
The Court proceeded in a structured manner:
- Jurisdiction and procedural posture: Section 11(4) of the Probation Act empowers the High Court in revision to set aside orders made under Sections 3 or 4 and pass sentence according to law; therefore the High Court had jurisdiction to review the Additional Sessions Judge's order. The criminal revision filed by the informant was treated as suo motu revision because the State did not file one.
- Statutory requirements under the Probation Act: The Court quoted Sections 4(1) and 4(2). It emphasized that sub-section (2) is mandatory: before making an order under sub-section (1) the court shall take into consideration the report, if any, of the probation officer concerned.
- Non-compliance with mandatory procedure: The Additional Sessions Judge had released Nityananda under Section 4(1) without calling for or considering any probation-officer report. The Court held such omission was contrary to law and invalidated the probation order on this ground alone.
- Substantive consideration of suitability for probation: Beyond procedural failure, the Court examined whether the Additional Sessions Judge had applied the substantive tests required by Section 4(1) — namely, considering the circumstances of the case, the nature of the offence and the character of the offender. The Court referred to Bisikesan Suna and the tests drawn from Section 562(1) Cr.P.C., noting that the availability of probation is to be judged with reference to the particular circumstances (e.g., the distinction between youthful/first offenders acting under sudden impulse and cases involving deliberate or reprehensible acts).
- Application to facts: The Court found the Additional Sessions Judge had not fully applied his mind to these tests. Although the Judge observed that the parties were near relations and that the assault was not premeditated, the High Court held that these facts alone did not justify invoking Section 4(1). The Court concluded that Nityananda's assault on P.W.1 (motivated by P.W.1's protest concerning his mother) did not make this a fit case for probation.
- Remedy and modification of sentence: Given the invalidity of the probation order and the unsuitability for probation on substantive grounds, the High Court quashed the release order. The Court then adjusted the punishment: it set aside the substantive sentence of imprisonment imposed by the Magistrate and imposed a fine of Rs. 300 on Nityananda, with default simple imprisonment for one month.
Holding and Implications
Core Ruling: The criminal revision is allowed. The order of the Additional Sessions Judge releasing Nityananda on probation under Section 4(1) of the Probation of Offenders Act is set aside.
Consequences and immediate implications:
- The probation order releasing Nityananda under Section 4(1) is quashed because the mandatory requirement of obtaining and considering a probation-officer's report under Section 4(2) was not complied with, and because the statutory tests for invoking Section 4(1) were not properly applied.
- The substantive sentence of imprisonment previously imposed by the Magistrate was set aside and in its place the High Court imposed a fine of Rs. 300 on Nityananda, with default simple imprisonment for one month.
- The convictions of the three opposite parties as found by the learned Judge remain intact; the High Court did not disturb the convictions and did not re-examine the releases of Ichhamani and Pitei under Section 3 of the Probation Act.
- No broader legal precedent beyond the application of existing authorities was asserted by the Court; the decision rested on enforcing the mandatory procedural requirement of Section 4(2) and applying established tests (as explained in cited authorities) to determine suitability for probation.
Final Disposition: Criminal revision allowed; the Additional Sessions Judge's order releasing Nityananda on probation under Section 4(1) is quashed and the punishment substituted as described above.
1. Late Uchhaba and Udayanath are brothers. Udayanath has two sons Nitvananda (opp. party No. 1) and Gouranga (P.W 1). Gouranga is the adopted son of Uchhaba. Pari Dei (P.W 2) is the wife of Udayanath. Ichhamani (Opp. party No. 2), is the wife of Nityananda. Pitei (Opp Party No. 3) is the mother of Ichhamani. Prosecution case is that on 11th of December, 1969 there was a quarrel between Nitvananda and P.W 2 over the removal of some bricks by Nityananda. In course of the quarrel Nityananda assaulted his mother P.W 2. P.W 1 told Udavanath left had and the other of the head. P.W 2 in his presence. Nityananda came out from his house with a bamboo lathi and dealt two blows on P.W 1 one on his left hand and the other on the head. P.W 1 fell down on the ground. P.W 8 intervened. Then Petei caught hold of P.W 2 while lohhamani dealt a blow on P.W 2 by means of a spade. After medical examination P.W 1 lodged information at Jagatsingpur police Station on 12-12-1969 at about 11.30 a.m The opposite parties denied their connection with the occurrence. Their defence is that P.W 1 quarrelled with Udayanath and while he was rushing towards Udayanath to assault him P.W 1 stumbled and fell down on stone rings and got himself injured. They pleaded ignorance of the injuries on P.W 2.
2. The learned Magistrate accepted the prosecution story and found Nityananda guilty under Sections 325 and 323 I.P.C and sentenced him to undergo R.I for one month and to pay a fine of Rs. 250/- on each count; in default to undergo R.I for further two months. The sentences were directed to run consecutively. Ichhamani was convicted under Sections 323 I.P.C and Pitei under Section 341 IPC. Both of them being females were released after due admonition under Section 3 of the Probation of Offenders Act, 1958 (hereinafter to be referred to as the Act).
3. All the three accused carried an appeal before the Sessions Judge. Cuttack which was ultimately heard by the learned Additional Sessions Judge. The learned Judge held that the fracture of the left hand of P.W 1 had not been proved beyond reasonable doubt by the prosecution. He accordingly set aside the conviction of opposite party No. 1 under Section 325 I.P.C but upheld his conviction under Section 323 IPC. He affirmed the conviction of Ichhamani and Pitei under Sections 323 and 341 I.P.C respectively. He did not interfere with the order of the learned Ss. D.M releasing both of them under Section 3 of the Act. So far as Nityananda is concerned, he held that the parties are very close relations and that the act of assault was perpetrated without any pre-meditation. Accordingly he released Nityananda under Section 4(1) of the Act on his executing a bond for a period of one year for Rs. 1,000/- with one surety for the like amount and he was directed to be placed under the supervision of the District Probation Officer, Cuttack. Though the appeal was allowed in art as the conviction under Section 325 IPC was set aside the learned Addl. Sessions Judge wrote that the appeal was dismissed with the modification in the sentence.
4. Opposite parties have not come up in revision challenging the conviction. In this revision Mr. Mohanty also does not challenge the validity of the conviction. Thus the conviction of all the three opposite parties under the different sections as found by the learned Judge stands.
5. As both the courts below have released Ichhamani and Pitei under Section 3 of the Act I do not propose to examine the correctness of that decision.
6. The only question for consideration is whether Nityananda should be released on probation under Section 4(1) of the Act. It is to be noted that P.W 1 was the informant and the State was conducting the prosecution. The State has not filed any revision. The revision has been filed by P.W 1. A question was accordingly raised whether the criminal revision at the instance of the informant is competent. The question is however, academic inasmuch as the fact having been brought to the notice of this Court the same can be treated as a suo motu revision. I treat it as a suo motu revision and it is not therefore, necessary to examine whether the revision is entertain able at the instance of the informant.
7. Section 11(4) of the Act lays, down that 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. The High Court has therefore, ample jurisdiction to interfere in revision with the impugned order. The next question for consideration is whether the learned Addl. Sessions Judge exercised his powers under Section 4(1) of the Act in accordance with law. Section 4(1) and (2) runs thus:
“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 of 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-s. (1) the Court shall take into consideration the report, if any of the probation-officer concerned in relation to the case.”
8. It is to be noted that sub-section (2) is mandatory. 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. Admittedly no report of the probation officer was called for in this case and accordingly the order of the learned Addl. Sessions Judge under Section 4(1) of the Act releasing Nityananda on probation is contrary to law.
9. This view is supported by a Single Judge decision of the Mysore High Court in 1964 (1) Cri LJ 460 (Mys), State of Mysore v. Saib Gundaj. The matter is concluded by a decision of the Supreme Court reported in (1971) 3 SCC 914 (Ram Singh v. State of Haryana). In paragraph 16 of that judgment their Lordships observed thus:—
“x x x x Section 4 and Section 6 of the Act indicate the procedure requiring the Court to call for a report from the Probation Officer and consideration of the report and any other information available relating to the character and physical and mental condition of the offender. These facts are of primary importance before the Court can pass an order under the Probation of Offenders Act.”
10. The impugned order of the learned Addl. Sessions Judge releasing Nityananda on probation under Section 4(1) of the Act is liable to be set aside on this simple ground.
11. Section 4(1) of the Act lays down certain principles to be followed before the power is exercised. The Court by which the person is found guilty must have the 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. The expression “nature of the offence and the character of the offender” does not lay down any clear test. The matter was examined by this Court in AIR 1967 Orissa 4 : (1967 Cri LJ 100). Bisikesan Suna v. State Therein an exposition of the meaning of this expression was given, in paragraph 4 of that judgment the following observation occurs:
“xx xx The further questioner consideration is to find out the meaning of the expression “the circumstances of case including the nature of the offence and the character of the offenders” as used in Sections 3, 4 and 6 of the Act. An expression, almost in similar language, has been used in Section 562(1) Criminal P.C which is to the effect “regard being had to the age character or antecedent of the offender and to the circumstances under which the offence was committed.” This expression has received judicial construction in several well known authorities. The tests laid down under that section are that the exercise of power under the section is entirely in the discretion of the Court to be exercised according to the circumstances of each case. The fact that an offender is a first or a youthful offender is by itself not sufficient to invoke the deletion. Both the conditions are the first essentials without which the section would have no application. Further restriction has been imposed after a youthful offender commits a first offence. The section is generally made applicable where a youthful first offender succumbs to sudden temptation or uncontrollable impulses or does a thoughtless act or acts under the influence of others. The section is not to be applied to cases where the act was of during and reprehensible nature, or the commission of the offence implied Drevious preparation or deliberate effort on the part of the accused, or where the conduct shows a design or a general character of craft and deceit. It is not necessary to refer to various authorities dealing with the aforesaid tests. Neither it is possible to give a comprehensive enumeration to cover all cases. The tests under Section 562(1) Criminal P.C are applicable to Sections 3, 4 and 6 of the Act more liberally xxxx”
12. The learned Judge does not seem to have fully applied his mind to the aforesaid tests. On this ground also his judgment is liable to be set aside. Merely because the parties are near relations and the accused acted on the spur of the moment Sec. 4(1) of the Act cannot be invoked. Here Nitvananda assaulted P.W 1 merely because he lodged a protest to his natural mother being assaulted by opp party No. 1.
13. As I have already stated, obtaining report from the probation officer under section 4(2) of the Act is mandatory. No such report is before me in the circumstances Nitvananda assaulted P.W 1 and did not resist the assault on his mother by his wife and mother-in-law this is not a fit case in which Section 4(1) of the Act should be applied. It is not necessary to call for a report under Section 4(2) of the Act. I accordingly quash the impugned order to the extent it releases Nityananda on probation under Section 4(1). Taking into consideration the fact that the parties are near relations and the assault was made on the heat of the moment as stated by the learned Judge. I set aside the substantive sentence of imprisonment imposed by the learned Magistrate and impose a fine of Rs. 300/- on Nitvananda in default he would undergo S.I for one month.
14. The criminal revision is allowed as indicated above.
15. Revision allowed.
Alert