Calcutta High Court (Appellete Side)
Samir Kumar Das @ Samir Das vs The State Of West Bengal on 5 May, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
CRR 137 of 2017
Samir Kumar Das @ Samir Das
Vs.
The State of West Bengal
Before: The Hon'ble Justice Apurba Sinha Ray
For the Petitioner : Mr. Debabrata Ray, Adv.
Mr. Prabir Majumder, Adv.
Mr. S. Majumder, Adv.
Mr. Debasis Shil, Adv.
Ms. Sangeeta Chakraborty, Adv.
For the State Mr. Joydeep Ray, learned Jr. Govt. Adv.,
Mr. Samarjit Balial, Adv.
CAV On : 27.03.2025
Judgment On : 05.05.2025
Apurba Sinha Ray, J. :-
1. The judgment dated 06.04.2016 passed by the Learned Judicial
Magistrate, 3rd Court, Krishnagar in connection with GR No. 1561 of 2008
which was affirmed by the First Appellate Court on 23.12.2016 is in the
centre stage of challenge by the revisionist on the grounds, inter alia, that
2
the learned courts below including the First Appellate Court did not
consider the materials on record and had unjustly convicted the present
revisionist.
2. The learned counsel Mr. Ray has submitted that there are several
lacuna in the judgment of conviction affirmed by the appellate court. The
learned counsel has pointed out that at the top of the written complaint
which was marked as exhibit - 4 it is written that the same was made for
presentation by hand. Though the maker of it categorically deposed in court
that the same was sent to the police station by registered posts, neither the
envelop nor the accompaniments, as stated in the FIR, were exhibited before
the Learned Trial Court for adjudication. Therefore, it cannot be treated as
an FIR. The learned counsel has also submitted that the written complaint
was dated 21.08.2008. After lodgment of the said complaint the same was
dispatched to the Learned Chief Judicial Magistrate, Krishnagar, Nadia on
09.09.2008 i.e. after six days of the lodgment of the said complaint which
gives rise to the presumption of embellishment. In this regard, the learned
counsel has relied upon several judicial decisions such as Balaka Singh &
Ors. Vs. State of Punjab (1975 AIR 1962), Ishwar Singh Vs. The State of
UP (AIR 1976 SC 2423).
3. The learned counsel has drawn the attention of this court to the
deposition of PW10, Bankim Chandra Saha who being the investigating
officer of the case has stated in the examination-in-chief that "this is original
3
of the fake certificate standing in the name of Samir Das bearing dated
15.05.2001 and serial no. 4260 that I have collected from the C.R.P.F.
(marked as exhibit - 12 with objection)". While in his cross-examination he
has stated that "I have received the said fake certificate from Deputy
Inspector of Police Group Center Durgapur through police constable Sukdeb
Dey. Fact that I have not collected any other documents from the office of
SDO Krishnagar".
4. The learned counsel has categorically submitted that the aforesaid
PW10 has contradicted his own version with regard to obtaining the alleged
fake certificate. However, neither the C.R.P.F. official nor constable Sukdeb
Dey were examined by the prosecution to substantiate the claim of PW 10.
According to Mr. Ray, it is clear that the investigation and the documents
relied upon are afterthoughts and the conviction based on those evidence
cannot sustain. So far as regards relevant law involved in the matter, Mr.
Ray has submitted that in order to constitute an offence punishable under
Section 471 of the Indian Penal Code, the prosecution is required to prove
the ingredients of section 464 and section 470 of the Indian Penal Code. But
in the instant case the prosecution made no allegation nor any attempt was
made to prove the alleged document being exhibit - 12 being prepared and
signed by the petitioner. Due to the failure on the part of the prosecution to
prove the ingredients of section 464 of the Indian Penal Code, the petitioner
cannot be convicted under section 471 of the Indian Penal Code. The
learned counsel has relied upon the following judicial decisions of Hon'ble
Supreme Court, Mir Nagvi Askari Vs. CBI, 2009 (15) SCC 643,
4
(Paragraphs - 164, 166), Sheila Sebastian Vs. R. Jawaharaj, 2018 (7)
SCC 581 (Paragraphs - 18, 22, 25, 30), Deepak Gaba & Ors. Vs. State of
Uttar Pradesh & Anr., (2023) 3 SCC 423 (Paragraphs - 21, 23, 24),
Mohammed Ibrahim & Ors. Vs. State of Bihar (2009) 8 SCC 751
(Paragraphs -14, 16 and 17).
5. Learned counsel Mr. Ray has submitted that the Learned Trial Judge
while convicting the petitioner did not deal with all the mandatory provisions
of sections 360 and 361 of the Criminal Procedure Code read with section 4
of Probation of Offenders Act, which makes the order of conviction and
sentence defective. He has placed his reliance on the judicial decisions
reported in Om Prakash & Ors. Vs. State of Haryana, (2001) 10 SCC 477,
Tarak Nath Keshari Vs. State of West Bengal, 2023 SCC Online SC 605.
6. The learned counsel for the revisionist has concluded his submission
by contending that in view of the above circumstances since the prosecution
has failed to prove its case against the petitioner beyond all reasonable
doubts, the petitioner is entitled to an order of acquittal. The learned
counsel has categorically submitted when the case is full of defectives,
discrepancies, material irregularities and doubts the order of conviction and
sentence should be set aside and the petitioner is to be acquitted from all
charges levelled against him.
7. The learned counsel for the State has vehemently opposed the
submission of the learned counsel of the convict. According to him, there are
5
sufficient materials against the petitioner showing that he was well aware
that he does not belong to ST Category and inspite of having such
knowledge, he submitted forged certificate and thereby he was able to get a
job in the C.R.P.F. in a post of constable which was reserved for ST
Category. As he is not actually an ST candidate, by his such act he deprived
an eligible candidate from ST Category to secure the post of constable. The
learned counsel has drawn the attention of this court to exhibit-8 which is a
verification report stating that the certificate produced by the revisionist was
fake and also exhibit-12 which is the original fake certificate.
8. The learned counsel for the State has categorically submitted that in
this case offences under section 471 coupled with offences under section
417 and 420 IPC have been attracted, as the certificate submitted by the
revisionist to secure the job of constable, which was a reserved category
post, was proved to be a fake one. He has further submitted that in view of
the relevant facts and circumstances the learned Trial Court had expunged
the application of Section 468 of IPC in this case. According to him, there is
no illegality or irregularity in convicting and sentencing the convict on the
part of the learned trial court and further there is no material on record
which suggests that the convict is entitled to acquittal.
9. The learned counsel for the State has also submitted that the
revisionist should be directed to return his salaries and benefits which he
obtained illegally from the concerned establishment with interest.
6
Court's View:-
10. I have considered the rival contentions of the parties. I have also
taken into consideration the judicial decisions submitted by the learned
counsel of the revisionist.
11. Needless to mention, each case has to be decided on its own merits. A
single difference in factual matrix may produce legal consequences different
from those which are reflected in the cited judicial decision. It is true that
there are certain lacuna in the prosecution case as alleged by the learned
counsel of the revisionist. The letter dated 21/08/2008 (Exhibit - 4) shows
that initially the concerned authority requested the Officer-in-Charge of
Krishnaganj Police Station, District - Nadia, West Bengal by sending Memo
No. 2726/S dated 4-5/04/2007 to lodge an FIR against the revisionist on
the ground that he was enlisted in C.R.P.F. as a constable (GD) on the basis
of production of a fake caste certificate (ST Certificate bearing no. 5642/S
dated 15.05.2001) on his behalf, but since then nothing was heard from the
Officer-in-Charge of Krishnaganj Police Station, and as a result of which the
concerned office of the C.R.P.F. Durgapur, West Bengal was unable to
submit a report to their higher ups. This letter was sent to the concerned
Officer-in-Charge of Krishnaganj Police Station on 21.08.2008 by hand and
after receiving the said letter, the Officer-in-Charge initiated Krishnaganj
Police Station Case No. 130 of 2008 dated 03.09.2008 under section 417,
420, 465, 468 and 471 IPC. From the above, it is found that by sending
such letter, Mr. Sanjeev Ranjan, Deputy Commandant for Additional DIGP,
GC, C.R.P.F., Durgapur - 14 enquired from the Officer-in-Charge,
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Krishnaganj Police Station, Nadia, West Bengal to know whether on the
basis of their earlier Memo dated 4-5/04/2007 any FIR was lodged against
the present revisionist or not. It appears from the record that the said letter
dated 21.08.2008 was treated as an FIR and thereafter formal FIR was
drawn on the basis of such FIR. However, there was no document from the
part of the prosecution that initially the Memo dated 4-5/04/2007 was
actually sent to the concerned Officer-in-Charge Krishnaganj Police Station
since the enclosure as mentioned in the letter dated 21.08.2008 were not
found in the exhibit list. It is further true that during his examination-in-
chief of PW6, Mr. Sanjeev Ranjan has deposed that he sent the letter dated
21.08.2008 by registered post but actually it is noted in the said letter that
the same was delivered by hand.
12. It appears that the case was lodged in the year 2008 and PW6 Mr.
Sanjeev Ranjan was examined in the year 2015. Therefore, if he has
mistakenly stated that he sent the letter dated 21.08.2008 by registered post
but actually the same was delivered by hand, such lacuna cannot be said to
be a vital inconsistency since the memory of a human being sometimes
fades due to passage of time. It is further true that after lodging of FIR on
03.09.2008 the FIR was placed before the concerned Chief Judicial
Magistrate, Krishnagar, Nadia on 09.09.2008. In the judicial decision
reported at AIR 1976 SC 2423 (Ishwar Singh Vs. The State of UP) the
Hon'ble Supreme Court deprecated such practice.
8
13. However, the factual matrix in Ishwar Singh (supra) case and Balaka
Singh (Supra) are different from the case in our hand. In both the above
cases the accused were facing charges of murder. In our case, the
documents play a vital role since it relates to the authenticity of a caste
certificate and such a document is the prime issue herein. It is said that
men may lie but documents may not. In this case the factual matrix relates to
the fact that the revisionist not being an ST secured a job in Central Reserve
Police Force in a post of constable which was reserved for an ST candidate,
by producing a fake and fraudulent caste certificate.
14. It is not denied that the revisionist was a constable in C.R.P.F. It is
also not denied by the revisionist that he does not belong to the scheduled
tribe category. It is further not denied that the post in which he was
appointed was reserved for ST Candidates. On the other hand the
prosecution has produced one certificate after being informed by the
concerned authority of C.R.P.F. that the revisionist produced a fake
certificate to get the job as mentioned above. The prosecution has also
brought on record a verification report from the concerned SDO office
showing that no such caste certificate was ever issued from such office. If
that be so, the prosecution has been able to discharge its primary onus and
the onus shifts upon the revisionist since it is he who is the best person to
say which caste he actually belongs to. As the particulars of a person's caste
is within the domain of special knowledge of that person, he is under a duty
to disclose which caste he belongs to. Throughout the entire proceeding it is
9
transpired that the petitioner did not discharge his onus by producing
materials on record showing that he actually belongs to ST inspite of getting
opportunity. Therefore, this case is different from the cases cited above,
since the matter relates to a document involving a caste certificate which is
found to be fake. There may be lacuna in the FIR but as the prosecution has
been able to show that the caste certificate on the basis of which the
revisionist was able to secure a job in a post reserved for ST category is a
fake one, the entire onus shifts upon the revisionist. Section 106 of Indian
Evidence Act, 1872 which is re-numbered as Section 109 of Bharatiya
Sakshya Adhiniyam, 2023 read as follows:-
"106. Burden of proving fact especially within
knowledge.- When any fact is especially within
the knowledge of any person, the burden of
proving that fact is upon him."
15. Therefore, from the above it is transpired that the petitioner was
unable to discharge his onus regarding the proof of a fact which is within
his exclusive knowledge by producing materials. I find that the judgments
passed by the Learned Trial Court and also by the Learned First Appellate
Court cannot be assailed on the ground, inter alia, that the case of the
petitioner was not appropriately considered.
16. I have gone through the case of Mir Nagvi Askari (supra) wherein the
Hon'ble Supreme Court in paragraphs 164 and 166 has been pleased to
hold :
10
"164. A person is said to make a false document or
record if he satisfies one of the three conditions as
noticed hereinbefore and provided for under the
said section. The first condition being that the
document has been falsified with the intention of
causing it to be believed that such document has
been made by a person, by whom the person
falsifying the document knows that it was not
made. Clearly the documents in question in the
present case, even if it be assumed to have been
made dishonestly or fraudulently, had not been
made with the intention of causing it to be believed
that they were made by or under the authority of
someone else. The second criterion of the section
deals with a case where a person without lawful
authority alters a document after it has been
made. There has been no allegation of alteration of
the voucher in question after they have been made.
Therefore, in our opinion the second criterion of the
said section is also not applicable to the present
case. The third and final condition of Section 464
deals with a document, signed by a person who
due to his mental capacity does not know the
contents of the documents which were made i.e.
11
because of intoxication or unsoundness of mind,
etc. Such is also not the case before us.
Indisputably therefore the accused before us could
not have been convicted with the making of a false
document.
.......
166. Further, the offence of forgery deals with
making of a false document with the specific
intentions enumerated therein. The said section
has been reproduced below.
“463. Forgery. Whoever makes any false
documents or false electronic record or part of a
document or electronic record, with intent to cause
damage or injury, to the public or to any person, or
to support any claim or title, or to cause any
person to part with property, or to enter into any
express or implied contract, or with intent to
commit fraud or that fraud may be committed,
commits forgery.”
However, since we have already held that the
commission of the said offence has not been
convincingly established, the accused could not
have been convicted for the offence of forgery. The
12
definition of “false document” is a part of the
definition of “forgery”. Both must be read together.
[Vimla (Dr.) v. Delhi Admn, AIR 1963 SC 1572].
Accordingly, the accused could not have been tried
for offence under Section 467 which deals with
forgery of valuable securities, will, etc. or Section
471 i.e. using as genuine a forged document or
Section 477-A i.e. falsification of accounts. The
conviction of the accused for the said offences is
accordingly set aside.”
17. By citing Deepak Gaba & Ors. Vs. State of UP and Anr. reported in
(2023) 3 SCC 423 it is contended by learned counsel Mr. Ray that in that
case it has been laid down that unless offences under Section 417, 470, 464
are proved a conviction cannot be sustained under Section 471 of the Code.
I differ with such submission. In paragraph 21 it was clearly laid down that
section 471 IPC is applicable when a person fraudulently or dishonestly
uses as genuine any document or electronic record which he knows or has
reason to believe to be a fraudulent document or electronic record. In our
case, the revisionist used the caste certificate knowing that he does not
belong to an ST category and such certificate is not genuine. He has
committed the offence punishable under Section 471 IPC. In my view, it is
not a requirement of law that the accused or the convict has to himself
prepare the forged document. If a person allows another to make a
13
fraudulent document and then the former uses the same as genuine, will
the former not be punishable under law? Yes. He is punishable under law
even if he did not make the fraudulent document by himself.
18. However, the factual aspects of the cited decisions are completely
different from the present case.
19. I have also considered the case law of Mohammed Ibrahim (supra)
the Hon’ble Supreme Court has laid down that
“16. ………When a person executes a document
conveying a property describing it as his, there are
two possibilities. The first is that he bona fide
believes that the property actually belongs to him.
The second is that he may be dishonestly or
fraudulently claiming it to be his even though he
knows that it is not his property. But to fall under
the first category of “false documents”, it is not
sufficient that a document has been made or
executed dishonestly or fraudulently.”
20. This case is also different from the case in our hand. However, the
above case law also supports the case of the prosecution. In Mohammed
Ibrahim (supra) (which has been relied upon in Mir Nagvi Aksari case), it
has been held by the Hon’ble Supreme Court in paragraph 17 that if what is
14
executed is not a false document there is no forgery and if there is no forgery
neither Section 467 nor Section 471 of the Code is attracted. But in our case
it is different. The exhibit-12 was proved to be a fake document by
producing the concerned SDO as a witness and further other materials were
produced to show that the said certificate was not issued from the office of
the concerned SDO. Therefore, the same is a false document.
21. It is also not correct exposition of law as submitted by the learned
counsel of the revisionist that as Section 464 has not been proved by the
prosecution, Section 471 of the IPC is not attracted.
22. If we peruse the provision of Section 471 we shall find that such
submission is falsified by such section itself.
23. Section 471 provides as hereunder:-
“471. Using as genuine a forged document or
electronic record.–
Whoever fraudulently or dishonestly uses as
genuine any document or electronic record which
he knows or has reason to believe to be a forged
document or electronic record, shall be punished
in the same manner as if he had forged such
document or electronic record.”
15
24. From the above section, it is found that if a person fraudulently or
dishonestly uses a genuine document knowing that the same is a fraudulent
document then he shall be punished in the same manner as if he has forged
such a document. Therefore, even if the concerned person does not himself
make such a fraudulent document he shall be deemed to have forged such a
document if he intentionally uses the said document as genuine after
knowing that the same is not. Therefore, the submission of the learned
counsel Mr. Ray does not hold good.
25. In view of the above, I find that there is nothing wrong to convict the
revisionist under section 471, 417 and 420 IPC. However, another limb of
argument of Mr. Ray, is that the concerned Judicial Magistrate did not
consider the provisions of Section 360 and 361 of Cr.P.C. before sentencing
the convict. According to him, the revisionist is a first time offender and
therefore the benefit of releasing him on probation should have been granted
by the Learned Judicial Magistrate. No attempt was made on the part of the
Learned Trial Court to specify why his release on probation is detrimental or
is not feasible. The course of action taken by the Judicial Magistrate is not
correct, as per submission of the learned counsel. In support of his
contention he has submitted a catena of judicial decisions reported in
(2001) 10 SCC 477 (Om Prakash and Ors. Vs. State of Haryana),
MANU/SC/1649/2017 (Prem Chand Vs. State of Himachal Pradesh),
Criminal Appeal No. 13 of 2000 reported in MANU/SC/2587/2000
(Chandreshwar Sharma Vs. State of Bihar).
16
26. In Om Prakash and Ors. (supra), Hon’ble Supreme Court has been
pleased to observe in paragraph 4:-
“4. When the case came up for admission before
this Court, the learned counsel for the appellants
raised the contention that the provisions of
Section 360 CrPC have not at all been looked into
and we, therefore, issued limited notice as to why
the said provisions will not be attracted to the
facts and circumstances of the present case. The
provisions of Section 360 CrPC are beneficial to
the accused only when the accused is a first
offender in case the accused is more than 21
years of age. Section 361 of the Code of Criminal
Procedure indicates that if the Court decided not
to exercise its jurisdiction under Section 360,
then it must record its reasons as to why the
benefit of Section 360 CrPC is being denied. In
view of the peremptory nature of the language of
provisions of Section 361, the Magistrate as well
as the Court in appeal and revision not having
indicated as to why the provisions of Section 360
CrPC have not been applied, there has been a
gross miscarriage of justice and the legislative
17mandate engrafted in the aforesaid two sections
of the Code have not been complied with.”
27. In Prem Chand Case (supra) the Hon’ble Supreme Court has been
pleased to direct the concerned court to deal with the appellant under the
provisions of Section 360 of the Criminal Procedure Code, 1973. The
relevant paragraph is reproduced herein below:-
“2. Learned Counsel for the Appellant submits
that the Appellant is a first-time offender. He does
not have any criminal background and, therefore,
he may be dealt with Under Section 360 of the
Code of Criminal Procedure, 1973. It is evident
from the materials placed on record that the
Appellant is a first-time offender. He does not
have any criminal antecedents of offenders. There
is also no complaint with regard to his behavior
during the pendency of the proceedings. Having
regard to the facts and circumstance of the case,
we are of the view that the High Court ought to
have granted the benefit of probation to the
Appellant. Therefore, the appeal is allowed in part
and while upholding the conviction, the sentence
of imprisonment awarded against him is set
aside. The trial court is directed to deal with the
18Appellant under the provisions of Section 360 of
the Code of Criminal Procedure, 1973.”
28. In Chandeswar Sharma case (supra) in paragraph 3 it has been
discussed as hereunder:-
“3. The appellant herein was convicted under
Sections 379 and 411 I.P.C. and was sentenced to
rigorous imprisonment for one year as 3.5 Kg. of
non-ferrous metal was recovered from his
possession. On an appeal being filed, the
conviction under Section 379 was affirmed. The
appellant carried the matter in revision, but the
revision also stood dismissed. All along the case of
the appellant was that the recovery from the tiffin
carrier kept on the cycle would not tantamount to
recovery from the possession of the appellant, and
this contention has been negatived and rightly so.
When the matter was listed before this Court, a
limited notice was issued as to why the provisions
of Section 360 of the Criminal Procedure Code
should not be made applicable. Pursuance to the
said notice, Mr. Singh, the learned standing
counsel for the State of Bihar has entered
appearance. From the perusal of the judgment of
19the learned Magistrate as well as the Court of
Appeal, and that of the High Court, it transpires
that none of the forums below had considered the
question of applicability of Section 360 of the CrPC
Section 361 and Section 360 of the Code on being
read together would indicate that in any case
where the Court could have dealt with an accused
under Section 360 of the Code, and yet does not
want to grant the benefit of the said provision then
it shall record in its judgment the specific reasons
for not having done so. This has apparently not
been done, inasmuch as the Court overlooked the
provisions of Sections 360 and 361 of the CrPC. As
such, the mandatory duty cast on the Magistrate
has not been performed. Looking to the facts and
circumstances of the present case, we see no
reasons not to apply the provisions of Section 360
of the CrPC. We accordingly, while maintain the
conviction of the appellant, direct that he will be
dealt with under section 360, and as such, we
direct that the appellant be released on probation
of good conduct instead of sentencing him, and he
should enter into a bond with one surety to appear
and receive the sentence when called upon during
20the period of one year for the purpose in question.
The bond for a year shall be executed before the
learned Chief Judicial Magistrate, Ranchi, within 3
weeks from today. The appeal is disposed of
accordingly.”
29. From the above, it is crystal clear that the learned Trial Court is under
a duty to consider the provision of sections 360 and 361 of the Code before
sentencing the convict. If the same is not done the process of sentencing
cannot be said to be a good exercise of power vested upon the concerned
Judicial Magistrate. Let us see what is written by the Learned Judicial
Magistrate at the time of sentencing the present revisionist. It appears from
the impugned judgment that Learned Trial Court has observed in paragraph
19 of the impugned judgment as follows:-
“Considering the nature and circumstances of the
offences the benefit of Probation of Offenders Act,
1958 is not extended to the convict Samir Das.”
30. Therefore, the Learned Judicial Magistrate has only considered the
nature and circumstances of the offence and according to him the
revisionist is not entitled to the benefit of Probation of Offenders Act, 1958.
There is no whisper in the said judgment that the Learned Judicial
Magistrate has taken into consideration the provisions of Section 360 and
361 of the Code of Criminal Procedure, 1973. Section 360(1) of the Code of
Criminal Procedure provides as hereunder:-
21
“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 behavior…………”
22
31. Section 361 of the Code has made it mandatory that if the concerned
court could have dealt with the accused under section 360 or the Probation
of Offenders Act, 1958 but does not do so it has to record in its judgment
the special reasons for not having done so. For the sake of convenience the
provisions of Section 361 is quoted hereunder:-
“361. Special reasons to be recorded in
certain cases- Where in any case the Court could
have dealt with –
a) an accused person under section 360 or under
the provisions of the Probation of Offenders Act,
1958 (20 of 1958), or
(b) a youthful offender under the Children Act,
1960 (60 of 1960), or any other law for the time
being in force for the treatment, training or
rehabilitation of youthful offenders,
but has not done so, it shall record in its judgment
the special reasons for not having done so.”
32. In the judgment the Learned Trial Judge held, inter alia, as the
revisionist dishonestly secured an employment for him by using fake caste
certificate and thereby deprived an eligible Candidate from ST Category, it
would be misplaced sympathy if the petitioner/convict is not appropriately
sentenced. However, it appears that the provisions of section 360 and 361 of
23
the Code are not taken into consideration by the Learned Trial Court. He
even did not give any special reason in his judgment for not applying the
provisions of 360 of the Code in this case. He had the discretion not to
release the convict on probation but he was under an obligation to specify
the special reason for not using such discretion in his favour. In other
words, application of Section 360 of the Code along with Section 361 is not
an empty formality. The Learned Judicial Magistrate is duty bound to apply
his mind by taking into consideration the factors mentioned in Section 360
Cr.P.C. and to weigh the circumstances in its proper perspective before
sentencing a convict. The process of sentencing remains incomplete if the
Judicial Magistrate does not comply with the requirements as mentioned in
Sections 360 and 361 of Code of Criminal Procedure, 1973.
33. However, I would like to add one more thing. In this regard, Hon’ble
Justice V.R. Krishna Iyear in his judgment in Ved Prakash Vs. State of
Haryana (1981) 1 SCC 447 has clearly laid down the guidelines. Hon’ble
Justice Iyear in his inimitable style observed in the above case law “we must
emphasis 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 have collected materials necessary to help award a just
punishment in the circumstances. The social background and the personal
factors of the crime-doer are very relevant although in practice Criminal Courts
have hardly paid attention to the social milieu or the personal circumstances
of the offender. Even if Section 360, Cr.P.C is not attracted, it is the duty of the
24
sentencing Court to be activist enough to collect such facts as have a bearing
on punishment with a rehabilitating slant.”
34. From the impugned judgment, it appears that the Learned Trial Court
did not consider the family background, social status, the number of
children, financial condition etc. of the convict. The sentencing process of
the Learned Judicial Magistrate did not show that he had taken all these
considerations before sentencing the petitioner. No efforts were taken from
the side of the Learned Judicial Magistrate to record whether the convict is a
first time offender or not. The Learned Judicial Magistrate only considered
the nature and circumstances of the offence which are not the requirement
of Section 360 of the Code. In my view the Learned Judicial Magistrate has
to consider all aspects of the matter including the social factors which might
have mitigating effects in sentencing the convict. Therefore, I find that the
sentencing process adopted by the Learned Judicial Magistrate is not in
accordance with the desire of the Hon’ble Supreme Court as laid down in
the above case laws. Astonishingly, the Learned First Appellate Court also
did not consider the issues as stated above.
35. I must say at the cost of repetition that the judicial decision which laid
down the guiding principle in Ved Prakash vs the State of Haryana (supra)
still holds good. The Court must take into consideration the status, the
position of members of family and other social factors or background of the
convict before sentencing him.
25
36. The learned Trial Court has to record that he considers all the above
factors before passing the sentence. I am not saying that after considering
such factors, as stated above, the Court cannot refuse to release the
offender on Probation of Offenders Act. What I want to say is that the
judgment must show that the learned court has considered the relevant
factors and has held that there are certain reasons for which the court is not
unwilling to release the convict on probation under the provisions of under
Section 4 of the Probation of Offenders Act or Section 360 of the Code, as
the case may be.
37. In view of the above, though the conviction of the petitioner is hereby
upheld but the sentence upon the convict being found unsatisfactorily
imposed upon him is hereby set aside.
38. Accordingly, the present criminal revisional application is allowed in
part on contest. The conviction order of the petitioner namely Samir Das in
connection with GR No. 1561 of 2008 of the Learned Judicial Magistrate, 3rd
Court, Krishnagar, Nadia affirmed in Criminal Appeal No. 11 of 2016 of
Learned Additional Sessions Judge, 5th Court, Krishnagar, Nadia on
23.12.2016 is hereby affirmed, but the order of sentence is set aside. The
Learned Judicial Magistrate, 3rd Court, Krishnagar, Nadia is to hear the
convict afresh on the point of sentence and also on the provisions of Section
360 of the Code of Criminal Procedure, 1973 which is now as Section 401
26
BNSS and to pass an order of sentence upon the convict in consideration of
the discussion mentioned in paragraph nos. 25 to 37 within three months
from date and the convict is directed to appear before the Learned Trial
Court as and when he was called upon. Let a copy of judgment along with
the trial court record be sent to the Learned Judicial Magistrate, 3rd Court,
Krishnagar through the Learned Chief Judicial Magistrate Nadia at
Krishnagar. On receipt of the trial court record the Learned Judicial
Magistrate, 3rd Court Krishnagar, Nadia shall issue a notice upon the
convict for hearing on the point of sentence at an early date.
39. The revisional application being CRR 137 of 2017 is allowed in part on
contest. No order as to costs. The trial court record be returned to the
concerned court at once.
40. Accordingly, CRR 137 of 2017 is disposed of.
41. Urgent photostat certified copies of this Judgment, if applied for, be
supplied to the parties on compliance of all necessary formalities.
(APURBA SINHA RAY, J.)
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