Gauhati High Court
Crl.Rev.P./501/2012 on 27 March, 2025
GAHC010009182012
2025:GAU-AS:3717
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL. REV. P NO.501/2012
1. Sri Rajib Gogoi,
S/ o- Sri Jogen Gogoi,
R/ o- Padumoni Kachugaon,
P/ o- Pulibor, Mouza- Moukhuwa,
P.S- Golaghat,
District- Golaghat (Assam).
2. Sri Bubul Saikia,
S/ o- Sri Bhalua Saikia,
R/ o- Padumoni Kachugaon,
P/ o- Pulibor, Mouza- Moukhuwa,
P.S- Golaghat,
District- Golaghat (Assam).
3. Sri Purnananda Gohain,
S/ o- Late Cheniram Gohain,
R/ o- Padumoni,
P/ o- Padumoni,
Mouza- Moukhuwa,
P.S- Golaghat,
District- Golaghat (Assam).
.......Petitioners
Page 1 of 18
-Versus-
The State of Assam
.......Respondent.
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioners : Mr. T. J. Mahanta, Senior Counsel
assisted by Mr. Tarun Gogoi, Advocate.
For the Respondent(s) : Mr. P. S. Lahkar, Additional Public
Prosecutor, Assam.
Date of Hearing : 21.03.2025, 25.03.2025 &
27.03.2025
Date of Judgment : 27.03.2025 .
JUDGMENT & ORDER (ORAL)
Heard Mr. T. J. Mahanta, learned Senior
Counsel assisted by Mr. Tarun Gogoi, learned Counsel for
the petitioners. Also heard Mr. P. S. Lahkar, learned
Additional Public Prosecutor, Assam for the State
respondent.
2. This application is filed under Section 401,
read with Section 397 of the Code of Criminal Procedure,
1973 (hereinafter referred to as “Cr.P.C.”) challenging the
judgment dated 22.08.2008 passed by the learned Chief
Judicial Magistrate, Golaghat (hereinafter referred to as
the “trial Court”) in G.R. Case No. 05/ 2007, wherein the
petitioners were convicted under Section 341/ 323/ 34 of
the I ndian Penal Code (hereinafter referred to as “I PC”)
Page 2 of 18
and sentenced to pay fine of Rs. 400/ – each under
Section 341 of I PC in default of payment of fine Simple
I mprisonment for 15 days, and also Rigorous
I mprisonment for 3 months each and fine of Rs. 500/ –
each under Section 323 of the I PC, in default of payment
of fine, Simple I mprisonment for 15 days, and judgment
and order dated 13.07.2012 passed in Criminal Appeal
No. 42/ 2008 passed by the learned Session Judge,
Golaghat (hereinafter referred to as the “appellate
Court”) whereby the appeal preferred by the petitioners
was dismissed.
3. The brief facts of the case is that on 01.01.2007
one Sri Pradyut Hazarika (informant) had lodged an F.I .R.
at Dhekial Police Outpost stating inter alia that on the
same day at around 3.30 p.m. while he along with his
friends Sri I ndrajit Neog, Sri Rajesh Agarwala and Sri
Shyamal Sengupta @ Bapi were on their way to his petrol
pump at Kuralguri, one jeep in which around 5 to 6
persons came towards them and did not let them cross
and therefore, they had to stop their vehicle by the side
of the road. I t is further alleged that when they stopped
at the side of the road, a boy came down from the said
jeep and had administered a punch on the right eye of
one of his friend Sri I ndrajit Neog for which his friend had
sustained serious injuries. I t is further alleged that his
other friend Sri Rajesh Agarwala was also assaulted by
them for which he lost his mobile phone. I t is further
alleged that thereafter, they had been taken to a house
Page 3 of 18
nearby and were being confined there, from where police
later on rescued them.
4. An F.I .R. was accordingly registered as Golaghat
P.S. Case No. 04/ 2007, under Section 147/ 325/ 342 of
I PC. Upon investigation being completed, the
I nvestigating Officer submitted Charge-sheet under
Section 147/ 325/ 342 of I PC against the petitioners.
Thereafter, the petitioners appeared before the trial
Court, whereafter the trial Court framed charge under
Section 341/ 323/ 34 of I PC and conducted the trial.
During trial, the prosecution examined as many as
9(nine) witnesses in support of their case and defence
examined none. After completion of trial and upon
hearing both the parties, the trial Court by judgment &
order dated 22.08.2008 convicted the petitioners under
Section 341/ 323/ 34 of I PC and sentenced them thereof.
Being aggrieved, the petitioners filed an appeal before
the appellate Court, wherein the appellate Court was
pleased to dismiss the appeal and upheld the conviction
and sentence passed by the trial Court. Situated thus, the
present revision petition has been filed.
5. Mr. T. J. Mahanta, learned Senior Counsel for the
petitioner submits that he is not arguing the matter on
merit of the conviction and shall confine his submission in
the appeal in respect of the order of sentence. He further
submits that the petitioners have not been convicted
previously for any offence and that they are first time
offenders. He further submits that the offence appears to
Page 4 of 18
have been committed in the heat of the moment and the
petitioners did not know the informant/ victims prior to
the incident. He further submits that it has also come out
from the evidences that after the incident, one of the
petitioners had taken the victims to the house where
water was also given. He further submits that the
injuries are also simple in nature. Therefore, in the
aforesaid backdrop he submits that the benefit of Section
360 of Cr.P.C. and Probation of Offenders Act, 1958
(hereinafter referred to as “Act, 1958”) ought to have
been given in the facts and circumstances of the case or
the petitioners ought to have been punished only with
fine as permissible under Section 323 of I PC. He further
submits that the trial Court while rejecting the benefit
under Section 360 of Cr.P.C did not consider the factors
favourable to the petitioners. He further submits that in
the appellate Court judgment, there is no any discussion
about granting benefit of Section 360 of Cr.P.C./ Act,
1958. I n support of the aforesaid submission, he relies
upon the following decisions:
(i) Amit Kapoor Vs. Ramesh Chander and another,
reported in (2012) 9 SCC 460.
(ii) Sitaram Paswan and another Vs. State of Bihar,
reported in AIR 2005 Supreme Court 3534
(iii) Ratul Bhuyan Vs. The State of Assam, in
Crl.Rev.P./383/2013. ( Gauhati High Court )Page 5 of 18
(iv) Abdur Rahman Mandal and Vs. The State of
Assam, in Crl.Rev.P./273/2009. ( Gauhati High
Court )
6. Per contra, Mr. P. S. Lahkar, learned Additional
Public Prosecutor, Assam, for the State respondent also in
his usual fairness submits that though the trial Court has
held the injuries to be simple in nature, yet has
mechanically rejected the prayer under the Act, 1958 and
Section 360 of Cr.P.C. He further submits that it is clearly
discernible from the evidence that there was no previous
enmity between the petitioners and the informant & the
victims.
7. I have given my prudent consideration to the
arguments advanced by the learned Counsels for the
contending parties and perused the material available on
record. I have also considered the case laws submitted at
the bar.
8. This Court after perusal of the material available on
record has not found any patent error or illegality in
passing the judgments. I t appears that the arguments of
both the sides are as regards the benefit provided under
Section 360 of Cr.P.C. and the Act, 1958. Therefore,
without going into the merits of the case any further, this
Court will now deal with the entitlement of the petitioner
of the benefit under the Act, 1958.
9. Apt to refer to Section 360 of Cr.P.C. which reads
as hereunder: –
Page 6 of 18
“360. Order to release on probation of good
conduct or after admonition-
(1) When any person not under twenty-one years of
age is convicted of an offence punishable with fine
only or with imprisonment for a term of seven
years or less, or when any person under twenty-
one years of age or any woman is convicted of an
offence not punishable with death or imprisonment
for life, and no previous conviction is proved
against the offender, if it appears to the Court
before which he is convicted, regard being had to
the age, character or antecedents of the offender,
and to the circumstances in which the offence was
committed, that it is expedient that the offender
should be released on probation of good conduct,
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 where any first offender is convicted
by a Magistrate of the second class not specially
empowered by the High Court, and the Magistrate
is of opinion that the powers conferred by this
section should be exercised, he shall record his
opinion to that effect, and submit the proceedings
to a Magistrate of the first class, forwarding the
accused to, or taking bail for his appearance before
such Magistrate, who shall dispose of the case in
the manner provided by sub-section (2).
(2) Where proceedings are submitted to a
Magistrate of the first class as provided by sub-
section (1), such Magistrate may thereupon pass
such sentence or make such order as he might
have passed or made if the case had originally
been heard by him, and, if he thinks further inquiry
or additional evidence on any point to be
necessary, he may make such inquiry or take such
evidence himself or direct such inquiry or evidence
to be made or taken.
(3) In any case in which a person is convicted of
theft, theft in a building, dishonest
misappropriation, cheating or any offence under
the Indian Penal Code (45 of 1860), punishable
with not more than two years’ imprisonment or any
offence punishable with fine only and no previous
conviction is proved against him, the Court before
which he is so convicted may, if it thinks fit, having
Page 7 of 18
regard to the age, character, antecedents or
physical or mental condition of the offender and to
the trivial nature of the offence or any extenuating
circumstances under which the offence was
committed, instead of sentencing him to any
punishment, release him after due admonition.
(4) An order under this section may be made by
any Appellate Court or by the High Court or Court
of Session when exercising its powers of revision.
(5) When an order has been made under this
section in respect of any offender, the High Court or
Court of Session may, on appeal when there is a
right of appeal to such Court, or when exercising its
powers of revision, set aside such order, and in
lieu thereof pass sentence on such offender
according to law :Provided that the High Court or
Court of Session shall not under this sub-section
inflict a greater punishment than might have been
inflicted by the Court by which the offender was
convicted.
(6) The provisions of Sections 121, 124 and 373
shall, so far as may be, apply in the case of
sureties offered in pursuance of the provisions of
this section.
(7) The Court, before directing the release of an
offender under sub-section (1), shall be satisfied
that an offender or his surety (if any) has a fixed
place of abode or regular occupation in the place
for which the Courts acts or in which the offender
is likely to live during the period named for the
observance of the conditions.
(8) If the Court which convicted the offender, or a
Court which could have dealt with the offender in
respect of his original offence, is satisfied that the
offender has failed to observe any of the conditions
of his recognisance, it may issue a warrant for his
apprehension.
(9) An offender, when apprehended on any such
warrant, shall be brought forthwith before the
Court issuing the warrant, and such Court may
either remand him in custody until the case is
heard or admit him to bail with a sufficient surety
conditioned on his appearing for sentence and such
Court may, after hearing the case, pass sentence.
(10) Nothing in this section shall affect the
provisions of the Probation of Offenders Act, 1958
(20 of 1958) or the Children Act, 1960 (60 or 1960),
or any other law for the time being in force for the
Page 8 of 18
treatment, training or rehabilitation of youthful
offenders.”
10. Reading of Section 360 of Cr.P.C. sub-section (4) it
appears that an order under Section 360 of Cr.P.C
directing release of an accused person on probation of
good conduct or after admonition can also be made by
appellate Court or by the High Court or by the Court of
Sessions while exercising its power of revision.
11. Reference in this regard is made to the decision of
the Apex Court in the case of Sitaram Paswan Vs.
State of Bihar (Supra). Paragraph 8 of the aforesaid
judgment is reproduced hereunder for ready reference: –
“8.Section 4 of the Probation of Offenders Act
empowers the Court to release a convicted person
on his entering into a bond with or without sureties
on probation when he is found guilty of committing
of any offence not punishable with death or
imprisonment for life. Relevant portion of
Section 4 of the Probation of Offenders Act, 1958
reads thus:
‘Section 4 Power of Court to release certain
offenders on probation of good conduct- (1)
Whenany 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 thePage 9 of 18
meantime to keep the peace and be of good
behaviour.’
For exercising the power which is discretionary, the
Court has to consider circumstances of the case,
the nature of the offence and the character of the
offender. While considering 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 of
Offenders Act is subject to the limitation embodied
in the provisions and the word “may” clearly
indicates 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 of
Offenders Act, having regard to the nature of the
offence and the character of the offender and
overall circumstances of the case. The powers
under Section 4 of the Probation of Offenders Act
vest 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 Courts 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 and also by this Court
while hearing appeal under Article 136 of the
Constitution of India.”
12. Reading of the aforesaid judgment it is clear that
the power under Section 360 of Cr.P.C. and Section 4 of
the Act, 1958 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
Page 10 of 18
can be exercised by the Court even at the appellate or
revisional stage.
13. Apt to refer to Section 4 of the Act, 1958 which is
reproduced hereunder for ready reference: –
“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 onePage 11 of 18
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.”
14. Reading of the aforesaid provision of the Act, 1958,
it appears that the power is discretionary and the Court
has to consider circumstances of the case, the nature of
the offence and the character of the offender. I t is thus
imperative for the Court while considering the nature of
the offence to take a realistic view of the gravity and the
impact which the offence had on the victim. This power is
vested with the Court when any person is found guilty of
the offence committed, not punishment with death or
imprisonment for life. Thus, 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 may be extended to the accused.
Page 12 of 18
15. Reference is also made to the decision of this Co-
ordinate bench in the case of Ratul Bhuyan (Supra)
wherein this Court in exercise of the revisional power
after considering the nature of the offence in the facts of
that case gave the benefit of the Act, 1958 to the
petitioner. Paragraphs 16, 17 and 18 of the aforesaid
decision are reproduced hereunder for ready reference: –
“16. It is by now well settled that Act, 1958 is a
milestone in progress of modern liberal trend of
reform in the field of Penology. It is the result of
recognition of the doctrine that the object of
criminal law is more to reform the individual
offender than to punish him. It was also held by
Hon’ble Apex Court in the case of Ved Prakash Vs.
State of Haryana reported in 1981 1 SCC 447, that
sentencing an accused person is a sensitive
exercise of discretion and not a routine or
mechanical prescription acting on hunch. The Trial
court should collect material necessary to award a
just punishment in circumstances. It was further
held that the social background and the personal
factors of the crime doer are very relevant in this
regard.
17. In the case of Sita Ram Paswan Vs. State of
Bihar reported in AIR 2005 SC 3534, the Hon’ble
Apex Court has laid down certain principle for
exercise of discretionary power under the Act and
the consideration required. The hon’ble Apex Court
opined that while exercising the discretionary
power under the Act 1958, the court is to consider
the circumstances of the case, the nature of offence
and the character of the offender. While
considering 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. It was concluded by the hon’ble Apex Court
that the benefit available to the accused under
section 4 of the Act, 1958 is subject to the
Limitation embodied in the provision and the word
‘may’ clearly indicates that the discretion is vested
Page 13 of 18
with the court whether to release the offender in
exercise of power under section3/4 of the Act,
1958, having regard to the nature of the offence,
the character of the offender and overall
circumstances of the case.
18. It was further held by the hon’ble Apex Court
that such power can be exercised by the court even
at the appellate or revisional stage or also by Apex
Court hearing appeal under Article 136 of the
Constitution of India.”
16. I n the present case it appears that the alleged
offence was committed on 01.01.2007 and it is crystal
clear from the judgment & order of the trial Court that
the offence is not considered as heinous or premeditated.
I t appears that upon sudden quarrel between the
petitioners and the victims on the road, the petitioners
dealt the blow. I t further appears that the petitioners
have not committed any similar nature of offence in any
point of law i.e. they have no past criminal record. I t
further appears that the petitioners have been suffering
since last 18 years litigating in the Court due to the
alleged incident which happened in the year 2007 when
they were young boys. I t further appears that injuries are
simple in nature and there is no previous criminal
background of the petitioners as revealed from the trial
Court judgment and occurrence took place due to the
misunderstanding.
17. Apt to reproduce paragraphs 15 and 26 of the
judgment of the trial Court, which is reproduced
hereunder for ready reference:
Page 14 of 18
“(15) Now, having gone through the evidence of
P.W.5. coupled with the evidence of P.W.1,
informant Pradyut Hazarika, an eye witness, I find
that the fact that injured Rajesh Agarwalla and
Indrajit Neog had sustained injuries on 01.01.07.
stands substantiated and though definite opinion
could not be given by the M/o in respect of the
injury he had found on the person of Rajesh
Agarwalla and Indrajit Neog but then, in view of
the opinion of the M.O. regarding the weapon used
in causing those injuries and in view of the
evidence of P.W.1 Pradyut Hazarika, I hold that the
injuries were simple in nature.
(26) Accused persons are heard on the
sentence.Considering the nature of injuries, proved
to have been sustained by the injureds, I hold that
the accused persons could not be extended the
benefit of release on probation of good conduct u/s
4 of the Probation of Offender’s Act. However,
considering the fact that the accused persons were
not habituated offenders and since they were not
proved to have been convicted earlier, the accused
persons are sentenced to fine of Rs. 400/-(Rupees
four hundred) each u/s 341 IPC, in default of
payment of fine S.I. for 15 days. The accused
persons are also sentenced to R.I. for 3(three)
months each and fine of 500/-(Rupees five
hundred)each u/s 323 IPC, in default of payment
of fine S.I. for 15 days.”
18. Reading of the aforesaid paragraphs of the
judgment of the trial Court it appears that though the trial
Court has held the injuries simple, observed that the
benefit of release on probation of good conduct under
Section 4 of the Act, 1958 cannot be extended to the
petitioners. I t further appears that the trial Court by
considering the fact that the accused persons were not
habitual offenders and since they were not proved to
have convicted earlier, they were sentenced to fine of Rs.
Page 15 of 18
400/ – each under Section 341 of I PC, in default of
imprisonment of fine Simple I mprisonment for 15 days
and also sentenced to Rigorous I mprisonment for 3
months each and fine of Rs. 500/ – each under Section
323 of the I PC, in default of payment of fine, Simple
I mprisonment for 15 days. I t is thus apparent that the
reasons for rejecting benefit of Section 4 of the Act 1958
and Section 360 of Cr.P.C. was not reflected in the
judgment of the trial Court. On the contrary, the trial
Court has clearly recorded that the petitioners are not
habitual offenders and the nature of injury is simple and
that the petitioners were not convicted earlier in any
other criminal case. Perusal of the appellate Court
judgment it appears that despite the appellate Court
having the powers to give the benefit of Section 360 of
Cr.P.C. and Section 4 of the Act, 1958 did not consider
the same. I t is thus apparent that though the trial Court
exercised its discretion under the Act, 1958, however, it
did not cite any reason for rejection of such benefit.
19. I n the considered opinion of this Court, such is a
failure of exercise of jurisdiction by the learned trial
Court. A court may not grant benefit in the given facts of
the case, however, considerations must be given.
Considering the above stated facts and without entering
into the merits of the judgment impugned and
considering the relevant provision of settled proposition
of law and the period lapsed from the date of incident
and also that the incident occurred without any
Page 16 of 18
premeditation of mind and that they did not know each
other and that the punishment awarded for the offences,
I am of the considered opinion that this is a fit case
where the benefit of the Act, 1958 should be provided to
the petitioners by this Court in exercise of its revisional
powers.
20. Accordingly, for the reasons recorded hereinabove,
the petitioners namely Sri Rajib Gogoi, Sri Bubul Saikia
and Sri Purnananda Gohain are given benefit under the
Act, 1958 and the sentence is modified to the effect that
instead of sending the petitioners to jail, they should be
given the benefit of Section 4 of the Act, 1958.
21. As such, it is directed that the petitioners will file
two sureties to the tune of Rs. 15,000/ – each along with
personal bond before the learned Chief Judicial
Magistrate, Golaghat, and undertake to the effect that the
petitioners shall keep peace and good behavior during the
period of 6(six) months from today. The aforesaid bond
shall be filed by the petitioners within a period of 1(one)
month from the date of this judgment.
22. Accordingly, the revision petition stands allowed
and is disposed of.
23. Before parting with the records, this Court deeply
appreciate the assistance and argument advanced by Mr.
Tarun Gogoi, learned Counsel for the petitioners before
the leading Counsel, Mr. T. J. Mahanta, learned Senior
Counsel joined the hearing for the petitioners.
Page 17 of 18
24. Return the case record.
JUDGE
Comparing Assistant
Page 18 of 18
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