http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

CASE NO.:

Appeal (crl.) 660 of 2005

PETITIONER:

M.C.D.

RESPONDENT:

State of Delhi and Anr.

DATE OF JUDGMENT: 29/04/2005

BENCH:

Ashok Bhan & Dr. AR. Lakshmanan

JUDGMENT:

JUDGMENT

ORDER

Leave granted.

Municipal Corporation of Delhi, aggrieved against the judgment and final

order dated 26.03.2004 passed by the High Court Delhi in Criminal Revision

Petition No. 185 of 2004 by which order the High Court gave the benefit of

probation under Section 4 of the Probation of Offenders Act, 1958 (herein

after referred to as "POB Act") to the second respondent - Gurcharan Singh

but maintained the conviction, preferred the above appeal.

The brief facts leading to the filing of the above appeal are as under :

One Mr. M.K. Verma (PW-4), Junior Engineer, Civil Line Zone, visited 189

Prem Gali, Punja Sharif, Mori Gate where he found unauthorized construction

going at the first floor of the said plot. F.I.R. was prepared on the

report of Mr. M.K. Verma who forwarded the F.I.R. before Zonal Engineer,

who ordered to issue notice under Section 343/344 of the Delhi Municipal

Corporation Act, 1957 (for short the "DMC Act"). Subsequently, the second

respondent along with Kuldeep Singh were prosecuted for commission of

offences under Sections 332 and 461 of the DMC Act before the designated

Municipal Court.

The trial Court, after the conclusion of the trial, convicted the second

respondent under Sections 332 and 461 of the DMC Act and sentenced him to

six months simple imprisonment and imposed a fine of Rs. 5000 (Annexure

P-1).

Aggrieved by that order, the second respondent-accused filed an appeal

before the Sessions Court, Delhi. The said Court by an order and judgment

dated 23.3.2004 dismissed the appeal by holding that there was no infirmity

in the order passed by the trial Court (Annexure P-2).

Against the judgment and order dated 23.3.2004, the accused filed Criminal

Revision Petition No. 185 of 2004 before the High Court Delhi. At the time

of arguments, the advocate for the accused submitted before the High Court

that the accused did not wish to challenge the conviction on merits and

stated it a fit case of accused to be admitted to the benefit of POB Act on

the ground that the accused faced trial for 12 years in the lower courts

and remained in jail for three days.

The High Court vide its order dated 26.3.2004 held that the accused

suffered the agony of trial lasting for 12 years. Besides that he has

already undergone some period in custody. The High Court also observed that

there is no allegation that the petitioner-accused is a previous convict

and it further held that the accused deserved the benefit of probation

under Section 4 of the POB Act and while maintaining the conviction of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

respondent-accused, the sentence of imprisonment and fine as awarded to him

was set aside.

The appellant, aggrieved by the judgment of the High Court, preferred the

above appeal by way of special leave petition before this Court.

We have perused the entire pleadings, orders and judgments passed by the

lower Courts and also of the High Court, the other annexures, in

particular, annexures P-1 and P-2, and records annexed to this appeal and

also heard the arguments of Mr. Ashwani Kumar, learned senior counsel

appearing for the appellant, Mr. Vikas Sharma, learned counsel appearing

for respondent No. 1 and Mr. Jaspal Singh, learned senior counsel,

appearing for the second respondent.

Learned senior counsel appearing for the appellant submitted that the High

Court, before extending the benefit of POB Act to the accused did not call

for a report from the authorities to check upon the conduct of the accused-

respondent as per Section 4(2) of the POB Act and that the appellant-MCD

was also not given time to file their counter affidavit on the question of

sentence. He further submitted that the High Court while passing the

impugned order and judgment did not take into consideration that the

accused-respondent had been convicted in another criminal case No. 202 of

1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. In

the said case, the accused-respondent was convicted under Section 332/461

of the DMC Act and sentenced to six months simple imprisonment with a fine

of Rs. 5000.

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 direction of the Municipal authorities and courts

passing various orders from time to time against the unauthorized

constructions. 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.

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 offender is likely to live during the period

for which he enters into the bond. 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.

Therefore, learned senior counsel appearing for the appellant, prayed that

order dated 26.3.2004 in Crl.Rev. Pet. No. 185 of 2004 be set aside and

appropriate orders be passed in this appeal.

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 of benefit of probation to the answering

respondent and, therefore, the requirement under Section 4(2) of the POB

Act has been waived off by the State and that the High Court took into

consideration the fact that the answering respondent has faced the agony of

trial for over 12 years and has also undergone some period in custody and

while maintaining the conviction of the answering respondent, the benefit

of probation was extended to him. It was, therefore, submitted that the

High Court passed the said order in the presence of the counsel of all the

parties.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

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 appeal, the Court of Additional Sessions

Judge, Patiala House, suspended the sentence during the pendency of the

appeal upon furnishing a personal bond for a sum of Rs. 25,000 with one

surety of the like amount to the satisfaction of the trial Court. 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 therefore, there is no conviction against

the answering respondent so long as the same is not decided by the Court of

Sessions. 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. 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. Therefore, there is no occasion for

the High Court to go into the issue of extent of constructions being raised

by the answering respondent. 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.

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 bond of good conduct by the answering

respondent since the date of the order of the High Court, therefore, the

order of the High Court is not liable to be interfered with.

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 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."

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 :-

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 record 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 :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

Provided that the court shall no 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."

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. The

appellant would have filed the orders passed by the criminal Courts

convicting the respondent herein had an opportunity been given to the

appellant. 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. 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

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.

The Trial Court heard the respondent on sentence also and passed the

following order:

"Convict in person with counsel

Heard on sentence.

It is contended that he is first offender. He is not a previous

convict nor habitual offender. He has faced trail since 1991. He is

aged about 57 years. He is not doing any business due to his bad

health.

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. Hence request declined.

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. Fine deposited. Convict remained for

sentence."

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. The appellate Court held that no

interference is required in the order passed by the trial court regarding

point of sentence. 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

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. 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. In our opinion, he would be

guilty of playing fraud on the Court as well as on the opposite party. A

person whose case is based on falsehood can be summarily thrown out at any

stage of the litigation. 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. 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. 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 Rs. 10,000 by way of cost to the appellant

herein.

We have already reproduced Section 4 of the POB Act. It applied to all

kinds of offenders whether under or above 21 years of age. This section is

intended to attempt possible reformation of an offender instead of

inflicting on him the normal punishment of his crime. 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. 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. Such exercise of discretion

needs a sense of responsibility. 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., AIR

(1970) Goa 49 and a release without such a report would, therefore, be

illegal.

In the case of Ram Singh and Ors. v. State of Haryana, [1971] 3 SCC 914, 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. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

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. This plea

cannot be entertained in this Court."

In the case of R. Mahalingam v. G. Padmavathi and Anr., (1979) Crl. 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. 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. Words "if

any" do not mean that the Court need not call for a report from the

probation officer. 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.

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. 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.

In the instant case, the Magistrate passed order releasing the

accused on probation without taking into consideration their

character. Held, the requirement of S. 4(1) was not fulfilled and

therefore the case remanded."

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, the judgment impugned in this appeal cannot

be allowed to stand. 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.

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.