2005 (4) TMI 584 - SC - Indian Laws

Challenged the Judgment of High Court gave the benefit of probation u/s 4 of the Probation of Offenders Act 1958 ( POB Act ) to the second respondent and Maintained the conviction - Without calling for a report from the Authorities relating to the conduct - Previous conviction - HELD THAT - 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 irregularity and unauthorized constructions carried by the builders in Delhi despite strict direction of the Municipal authorities and despite of the Courts passing various orders from time to time against the unauthorized construction. 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. The High Court vide its order impugned in this appeal has observed that there is no allegation that the respondent is a previous convict. 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. Non-production of the order and even non-mentioning of the conviction and sentence in the criminal Case tantamounts to playing fraud on the Court. A litigant who approaches the Court is bound to produce all documents which are relevant to the litigation. 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. 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. 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. 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 10, 000 by way of cost to the appellant herein. 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. The section itself is clear that before applying the section the Magistrate should carefully take into consideration the attendant circumstances. The second respondent is a previous convict as per the records placed before us. Such a previous convict cannot be released in view of Section 4 of the POB Act. 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. 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. Naguesh G. Shet Govenkar and Anr. 1969 (7) TMI 124 - THE GOA DAMAN AND DIU JUDICIAL COMMISSIONERS COURT and a release without such a report would therefore be illegal. The appeal is accordingly allowed with costs of 10, 000 to be paid by the second respondent to the appellant.

Summary

Issues Involved:
1. Whether the High Court was correct in extending the benefit of the Probation of Offenders Act, 1958 (POB Act) to the accused respondent without calling for a report from the authorities relating to the conduct of the respondent as per Section 4 of the Act.
2. Whether 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.

Issue-wise Detailed Analysis:

1. Extension of POB Act Benefit Without Conduct Report:
The appellant argued that the High Court extended the benefit of the POB Act to the accused without calling for a report from the authorities about the conduct of the respondent as mandated by Section 4(2) of the POB Act. The appellant also contended that they were not given time to file a counter affidavit on the question of sentence. The Supreme Court emphasized the mandatory nature of Section 4(2) of the POB Act, which requires the court to take into consideration the report of the probation officer before making an order under Section 4(1). The Court cited previous judgments to reinforce that obtaining and considering such a report is essential. The High Court's failure to call for this report rendered its decision legally unsound.

2. High Court's Judgment Amidst Previous Conviction:
The appellant highlighted that the respondent had been convicted in another criminal case (No. 202 of 1997) by the Court of Metropolitan Magistrate, Patiala House, New Delhi, which was not considered by the High Court. The Supreme Court noted that the High Court's observation that there was no allegation of the respondent being a previous convict was incorrect. The respondent's failure to disclose this prior conviction amounted to withholding vital information and playing fraud on the court. The Supreme Court disapproved of this conduct and emphasized that a person whose case is based on falsehood has no right to approach the court.

Conclusion:
The Supreme Court concluded that the High Court's decision to extend the benefit of the POB Act without calling for a conduct report and without considering the respondent's previous conviction was erroneous. The judgment of the High Court was set aside, and the matter was remitted back to the High Court for fresh disposal in accordance with the law. The appeal was allowed with costs of Rs. 10,000 to be paid by the second respondent to the appellant.