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Learned senior counsel appearing for the appellant further submitted that there was no good reason for letting the respondent off by granting to him the said benefit of POB Act,particularly keeping in view the large scale irregularity and unauthorized constructions carried by the builders in Delhi despite strict direct... |
It was further submitted that the High Court should not have waived off the payment of fine amount by the accused respondent and that the High Court ought to have taken into consideration that the respondent has been in jail for only three days and had not put in substantial period in custody ARG |
It was further submitted by learned senior counsel appearing for the appellant that the Court shall not direct release of 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 offen... |
It was also contended that before making any order under Section 4(1) of the POB Act,the Court shall take into consideration the report,if any,of the probation officer concerned in relation to the case which the High Court has miserably failed to do so ARG |
Therefore,learned senior counsel appearing for the appellant,prayed that order dated 26.3.2004 in Crl ARG |
Rev ARG |
Pet ARG |
No.185 of 2004 be set aside and appropriate orders be passed in this appeal ARG |
Learned senior counsel appearing for the contesting respondent submitted that the order of the High Court does not require any reconsideration by this Court and that the High Court while extending the benefit of POB Act had clearly recorded in the order that the counsel for the State of Delhi is not averse to the grant... |
It was,therefore,submitted that the High Court passed the said order in the presence of the counsel of all the parties ARG |
Learned senior counsel appearing for the second respondent submitted that in S.T.No.202 of 1997,a judgment was given by the Metropolitan Magistrate on 10.9.2002 and the respondent filed an appeal No.374 of 2002 before the Court of Sessions,Patiala House,New Delhi challenging the said order of conviction and in that app... |
It was,therefore,submitted that the sentence/imprisonment awarded by the Metropolitan Magistrate has been suspended under Section 389 of the Criminal Procedure Code by the Court of Additional Sessions Judge,Delhi in view of the pendency of the appeal against the order of conviction is a continuation of proceedings and ... |
It was also submitted that the requirement of calling of a report from the Probationer Officer under Section 4(2) of the POB Act has been waived off by the counsel for the State of Delhi and that the counsel for the MCD also did not raise any objection before the High Court ARG |
It was further contended that the respondent has not contested the revision in the High Court on merits and confined his submission to the benefit of Section 4 of the POB Act being extended to him ARG |
Therefore,there is no occasion for the High Court to go into the issue of extent of constructions being raised by the answering respondent ARG |
He further contended that the trial Court has committed serious error in exercising jurisdiction while not granting the benefit of probation to the answering respondent and the order of the trial Court was,therefore,rightly and justifiable modified by the High Court ARG |
Concluding his arguments,he submitted that the respondent has been released after compliance of the order passed by the High Court by furnishing the bone of good conduct and security to the satisfaction of the Additional Court of Metropolitan Magistrate,Delhi and there is no report of any misconduct or breach of the bo... |
In the above background,two questions of law arise for consideration by this Court: "1.Whether the High Court was correct in extending the benefit of the Probation of Offenders Act,1958 to the accused respondent without calling for a report from the Authorities relating to the conduct of the respondent as per Section 4... |
2.Whether Ratio |
the High Court was correct in passing the impugned judgment in view of the fact that the respondent has been convicted in another criminal case No.202 of 1997 by the trial Court,New Delhi Ratio |
Before proceeding further,it would be beneficial to reproduce Section 4 of the Probation of Offenders Act,1958 which is extracted below for ready reference STA |
Power of court to release certain offenders on probation of good conduct STA |
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 record to the circumstances of the case including the nature of the offence and the character of the offender,it is expedient to... |
2.Before making any order under sub-section STA |
1),the court shall take into consideration the report,if any,of the Probation Officer concerned in relation to the case STA |
It is the specific case of the appellant herein that the High Court has not afforded to the appellant an opportunity to file counter affidavit Ratio |
The appellant would have filed the orders passed by the criminal Courts convicting the respondent herein had an opportunity been given to the appellant Ratio |
The High Court while passing the impugned order and judgment did not take into consideration that the accused-respondent has been convicted in another Criminal Case No.202 of 1997 by the Court of Metropolitan Magistrate,Patiala House,New Delhi Ratio |
In the said case,the accused has been convicted under Sections 332/461 of the DMC Act and sentenced to six months simple imprisonment with fine of Rs.5000.In our view,there was no good reason for letting the respondent off by granting to him the said benefit of POB Act particularly,keeping in view the large scale irreg... |
The High Court also failed to take into consideration that the respondent has been in jail for three days and had not put in substantial period in custody Ratio |
The High Court vide its order impugned in this appeal has observed that there is no allegation that the respondent is a previous convict Ratio |
In fact,as could be seen from the annexures filed along with this appeal,the respondent has been convicted for offence under Sections 332 and 461 of the DMC Act Ratio |
The Trial Court heard the respondent on sentence also and passed the following order: "Convict in person with counsel Heard on sentence RLC |
It is contended that he is first offender RLC |
He is not a previous convict nor habitual offender RLC |
He has faced trail since 1991.He is aged about 57 years RLC |
He is not doing any business due to his bad health RLC |
Considering the above facts and circumstances,and gravity of the nature of the offence i.e.extent of construction raised by the accused for commercial as 11 shops at ground floor and 11 shops at first floor,I am not inclined to release the accused/convict on probation RLC |
Hence request declined RLC |
In the interest of justice,sentence of six months SI,with fine of Rs.5000 I.D.one month SI is imposed upon the convict for offence u/s 332/461 DMC Act RLC |
Fine deposited RLC |
Convict remained for sentence RLC |
The Additional Sessions Judge,New Delhi also in Civil Appeal No.7 of 2002 (Annexure P-2) dismissed the appeal as there is no infirmity in the order of the trial Court and uphold the conviction order passed by the trial Court on the point of sentence FAC |
The appellate Court held that no interference is required in the order passed by the trial court regarding point of sentence FAC |
Since the appellant-MCD was not given any opportunity by the High Court to file conduct report of the respondent,the order impugned in this appeal is liable to be set aside Ratio |
This apart,the respondent did not also disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another Criminal Case No.202 of 1997 by the Court of Metropolitan Magistrate,Patiala House,New Delhi Ratio |
Thus,the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side Ratio |
In our opinion,he would be guilty of playing fraud on the Court as well as on the opposite party Ratio |
A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation Ratio |
We have no hesitation to say that a person whose case is based on falsehood has no right to approach the Court and he can be summarily thrown out at any stage of the litigation Ratio |
In the instant case,non-production of the order and even non-mentioning of the conviction and sentence in the criminal Case No.202 of 1997 tantamounts to playing fraud on the Court Ratio |
A litigant who approaches the Court is bound to produce all documents which are relevant to the litigation Ratio |
If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well on the opposite party Ratio |
The second respondent,in our opinion,was not justified in suppressing the material fact that he was convicted by the Magistrate on an earlier occasion Ratio |
Since the second respondent deliberately suppressed the crucial and important fact,we disapprove strongly and particularly,the conduct of the second respondent and by reason of such conduct,the second respondent disentitled himself from getting any relief or assistance from this Court Ratio |
We,however,part with this case with heavy heart expressing our strong disapproval of the conduct and behaviour but direct that the second respondent to pay a sum of Rs.10,000 by way of cost to the appellant herein Ratio |
We have already reproduced Section 4 of the POB Act STA |
It applied to all kinds of offenders whether under or above 21 years of age STA |
This section is intended to attempt possible reformation of an offender instead of inflicting on him the normal punishment of his crime STA |
The only limitation imposed by Section 6 is that in the first instance an offender under twenty one years of age,will not be sentenced to imprisonment STA |
While extending benefit of this case,the discretion of the Court has to be exercised having regard to the circumstances in which the crime was committed,the age,character and antecedents of the offender Ratio |
Such exercise of discretion needs a sense of responsibility Ratio |
The offender can only be released on probation of good conduct under this section when the Court forms an opinion,having considered the circumstances of the case,the nature of the offence and the character of the offender,that in a particular case,the offender should be released on probation of good conduct Ratio |
The section itself is clear that before applying the section,the Magistrate should carefully take into consideration the attendant circumstances Ratio |
The second respondent is a previous convict as per the records placed before us Ratio |
Such a previous convict cannot be released in view of Section 4 of the POB Act Ratio |
The Court is bound to call for a report as per Section 4 of POB Act but the High Court has failed to do so although the Court is not bound by the report of the Probationer Officer but it must call for such a report before the case comes to its conclusion Ratio |
The word "shall" in sub-section (2) of Section 4 is mandatory and the consideration of the report of the Probationer Officer is a condition precedent to the release of the accused as reported in the case of State v PRE |
Naguesh G.Shet Govenkar and Anr.,AIR (1970 PRE |
Goa 49 1969 Indlaw GOA 8 and a release without such a report PRE |
would,therefore,be illegal PRE |
In the case of Ram Singh and Ors.v PRE |
State of Haryana,[1971] 3 SCC 914 1970 Indlaw SC 513,a Bench of two Judges of this Court in paragraph 16 of the judgment observed as under: "Counsel for the appellants invoked the application of Probation of Offenders Act PRE |
Sections 4 and 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 PRE |
These facts are of primary importance before the Court can pass an order under the Probation of Offenders Act PRE |
This plea cannot be entertained in this Court PRE |
In the case of R.Mahalingam v PRE |
G.Padmavathi and Anr.,(1979) Crl PRE |
LJ NOC 20 Mad.,the Court observed as under: "If any report is filed by the probation officer,the Court is bound to consider it PRE |
Obtaining such a report of the probation officer is mandatory since the sub-s.(1) of S.4 says that the Court shall consider the report of the probation officer PRE |
Words PRE |
if any" do not mean that the Court need not call for a report from the probation officer PRE |
The words "if any" would only cover a case where notwithstanding such requisition,the probation officer for one reason or other has not submitted a report PRE |
Before deciding to act under S.4 (1),it is mandatory on the part of the Court to call for a report from the probation officer and if such a report is received,it is mandatory on the part of the Court to consider the report PRE |
But if for one reason or the other such a report is not forthcoming,the Court has to decide the matter on other materials available to it PRE |
In the instant case,the Magistrate passed order releasing the accused on probation without taking into consideration their character PRE |
Held,the requirement of S.4(1) was not fulfilled and therefore the case remanded PRE |
Since the High Court has disposed of the criminal revision without giving an opportunity of filing counter affidavit to the counsel for the MCD and that the respondent did not disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another criminal case No.202 of 1997,t... |
We,therefore,have no hesitation in setting aside the order impugned and remit the matter to the High Court for fresh disposal strictly in accordance with law Ratio |
The appeal is,accordingly,allowed with costs of Rs.10,000 to be paid by the second respondent to the appellant,as indicated in paragraph supra RPC |
Appeal allowed RPC |
These appeals are directed against a judgment and order dated 17.October.2003 passed by the Special Court constituted under the Special Courts (Trial of Offences Relating to Transactions in Securities FAC |
Act, 1992 (for short "the Act") in Misc FAC |
Application Nos FAC |
41 of 1999, 4 of 2001, 265, 266 and 275 of 2003 FAC |
BACKGROUND FACTS FAC |
The Appellants herein who are related to one Harshad S. Mehta (since deceased) purchased nine residential flats in a building called Madhuli Apartments in Worli area of Mumbai FAC |
The family of the Appellants consists of four brothers, their wives, children and their widowed mother FAC |
The eldest among them, Harshad S. Mehta, has since expired FAC |
The said nine flats, it is said, were merged and redesigned for joint living of the entire family FAC |
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