APHC010660902009 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI WEDNESDAY, THE TENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO CRIMINAL REVISION CASE No.1590 of 2009 Revision filed under Section 397 & 401 of Cr.P.C, against the Judgment in CrI.A.No. 94 of 2009, dated 17-9-2009 on the file of the V Additional Sessions Judge, (FTC), Guntur, Guntur District, and judgment dated 18-02- 2009 in CC.No. 470 of 2008 on the of IV Additional Junior Civil, Judge, Guntur, Guntur District. Between: Smt Devara Santhi, W/o Srinivasarao, R/o Cheekatipalem, Kottappakonda Road, Narasaraopet, Guntur District. ...Petitioner/Appellant/Accused AND The State of A.P., rep. by its Public Prosecutor, High Court of A.P., at Amaravati, through SHO., Kothapet Crime P.S., Guntur, Guntur District. ...Respondent/ Respondent : Sri Shaik MohammedIsmail (Legal Aid) Counsel for the Petitioner Counsel for the Respondent : Public Prosecutor The Court made the following order: APHC010660902009 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) WEDNESDAY, THE TENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE [3369] PRESENT THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL REVISION CASE NO: 1590/2009 Between: 1.SMT. DEVARA SANTHI, W/0 SRINiVASARAO, R/0 CHEEKATIPALEM, KOTTAPPAKONDA ROAD, NARASARAOPET, ...PETITIONER AND 1.THE STATE OF AP REP BY ITS'PP HYD, rep. By its Public Prosecutor, High Court of A.P., at Hyderabad, through SHO, Kothapet PS, Guntur, Guntur District. ...RESPONDENT Revision filed under Section 397/401 of Cr.P.C praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to allow the revision by setting aside the Judgment in Crl.A.No.94 of 2009, dated 17.09.2009, on the file of the V Addl. Sessions Judge, (FTC), Guntur, and also the Judgment dated 25.02.2009 in C.C.No.470 of 2008 on the file of IV Addl. Junior Civil Judge, Guntur. lA NO: 1 OF 2009(CRLRCMP 2201 OF 2009 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the Judgment in CrI.A.No. 94 of 2009, dated 17.09.2009, on the file of the V Addl. Sessions Judge, (FTC), Guntur and Judgment dated 18.02.2009 in CC.No.470 of 2008 on the file of IV Addl. Junior Civil Judge, Guntur District, by enlarging the petitioner on bail in the interest of justice pending disposal of the CrI.R.C. 2 Counsel for the Petitioner: 1.SHAIK MOHAMMED ISMAIL 2. LEGAL AID COUNSEL Counsel for the Respondent: 1.K. SANDEEP. ASST. PUBLIC PROSECUTOR The Court made the following: ORDER 1. This Criminal Revision Case, filed under sections 397 and 401 of the Code of Criminal Procedure, 1973, (for short, ‘Cr.P.C.’), preferred by the petitioner/accused, who was the appellant in Criminal Appeal No.94 of 2009, on the file of V Additional Sessions Judge (Fast Track Court) short, the 1®‘ Appellate Court), challenging the judgment whereunder the 1^‘ Appellate Court dismissed the Guntur, (for dated 17.09.2009, appeal and confirmed the conviction and sentence imposed against the accused for the offence under Section 379 of Indian Penal Code, 1860 (for short, IPC’) vide Judgment dated 18.02.2009 in C.C.No.470 of 2008 on the file of learned IV Additional Junior Civil Judge, Guntur (for short, ‘the trial Court’). 2. By Judgment dated 18.02.2009 in C.C.No.470 of 2008, the learned IV Additional Junior Civil Judge, Guntur (for short, 'the Trial Court'), convicted the pelitioner/accused and sentenced her to undergo Simple Imprisonment period of six (6) months for the offence punishable under Section 3. The parties to this Criminal Revision Case will hereinafter be as described before the trial Court for the sake of 4. The brief facts of the case of the prosecution are that: On 11.04.2008 at around 11:00 AM, P.W.1, N. Radha Rani, and LW.2 visited GGH, Guntur. While P.W.1 the accused observed her looking tense and devised and steal her gold chain. Pretending to seek money for milk for her daughter for a 379 of IPC. referred to convenience. was standing near the Information Centre, a plan to deceive her 3 the accused approached P.W.1, who was in a queue, and used a blade to cut and remove two rows of nantadu (gold chain), which fell onto P.W.1's saree. The accused continued to follow P.W.I, persistently begging, which led P.W.1 to give her Rs.50/-. During this time, the accused stealthily took the fallen chain and fled the scene. P.W.1 later realized the gold chain was missing and, suspecting the accused, reported the incident. A case was registered in Crime No.47 of 2008 u/Secs.420 and 379 IPC. On 28.09.2008, LW.6, S.l. of Police arrested the accused near Liberty Theatre, who was found with a three year- old child. Upon interrogation, the accused confessed to the crime. Based on this confession, LW.6, Sub-Inspector of Police, recovered the stolen two-row nantadu weighing three sovereigns from the accused's possession. The accused was remanded, and the charge sheet was filed upon completion of the investigation. The learned IV Additional Junic^r Civil Judge, Guntur took cognizance under section 379 of the IPC against the accused. Upon the appearance of the accused, copies of the prosecution documents were furnished to the accused as contemplated under Section 207 Cr. P.C. 3. 4. The accused was examined under section 239 of Cr.P.C. A charge under Section 379 of the IPC against the accused was framed, read over, and explained to the accused in Telugu, to which the accused pleaded not guilty and claimed to be tried. During the course of the trial, on behalf of the prosecution, P.Ws. 1 to 4 were examined, and Exs.P1 to P5 and M.0.1 were marked. After the closure of the evidence of the prosecution, the accused was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which she denied the same and stated that she had no defence witnesses. The accused was examined under Section 313 of Cr.P.C. and pleaded not guilty. 5. 4 The trial Court, on hearing both^sides and on considering the oral as ^ well as documentary evidence, found the accused guilty of the offence under Section 379 of the IPC vide Judgment dated 18.02.2009 in C.C.No.470 of 2008. 6. 7. Felt aggrieved of the aforesaid conviction and sentence, the unsuccessful accused filed Criminal Appeal No.94 of 2009 before the Appellate Court, and the 1®' Appellate Court dismissed the Criminal Appeal and confirmed the conviction and sentence imposed against the accused vide Judgment dated 17.09.2009. Felt aggrieved by the same, the unsuccessful appellant/accused filed the present Criminal Revision Case, challenging the Judgment of the learned Sessions Judge in Criminal Appeal No.94 of 2009. 1 8. Heard Sri Shaik Mohammed Ismail, learned Legal Aid counsel for the petitioner/accused, and Sri K. Sandeep, learned Assistant Public Prosecutor, appearing for the Respondent/State. 9. Despite having raised multiple grounds against the conviction in the grounds of revision, the learned counsel for the petitioner/accu sed has limited his arguments exclusively to the quantum of the sentence. He further submits that the petitioner/accused is the sole breadwinner of her family and that the Court take a lenient view. He further submits that the petitioner has prior criminal record and has remained in judicial custody for a total period of 24 days, i.e., from 29.09.2008 to 15.10.2008. Pursuant requests no to the Judgment was remanded on passed in Criminal Appeal No. 94 of 2009, the accused 17.09.2009 and was subsequently released on 23.09.2009, as per the orders passed by this Court in the present revision. 10. It is settled law as observed by the Hon’ble Supreme Court in State of Maharashtra V. Jagmohan Singh Kuldip Sing Anand', that “in exercise of revisional powers, this Court need not undertaken in-depth and minutest (2004) 7 see 659 5 reexamination of entire evidence, whep there is no error in the findings arrived by the Trial Court as well 1®‘ Appellate Court”. The Hon’ble Supreme Court in Manju Ram Kalita V. State of Assam^, 11. held that: 9 if the courts below have recorded the finding of fact, the question of re appreciation of evidence by the third Court does not arise unless it is found to be totally perverse. The higher Court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by reappreciating the evidence. 10. This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from the normal practice. 8 The position may undoubtedly be different if interference is one of law from [the] facts admitted and proved or where the finding of fact is materially affected by violation of any rule of law'pr procedure." The aforesaid view was further reiterated by the Hon'ble Supreme Court in Malkeet Singh Gill V. The State of Chhattisgarh^, thus; 12. "8 The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate Court and the scope of interference in revision is extremely narrow. Section 397 of Criminal Procedure Code (in short 'Cr.P.C') vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be wellfounded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings." 13. In light of the settled legal position, upon reviewing the judgments, this Court finds that both courts, after recording cogent reasons, concurrently held that the accused was found guilty of the offence under Section 379 of the IPC. In view of the overall facts and circumstances of the case, this Court finds that the 1®* Appellate Court has rightly appreciated the evidence and assessed the material placed before it in a proper and correct perspective. ^ (2009) 13 see 330 ® AIR 2022 Se 3283 6 14. Upon considering the submissions of learned counsel on both sides, ^ I see no illegality, error, or perversity^ in the findings of the Courts below regarding the conviction of the accused for the offence under Section 379 of the IPC. There is no justification for interfering with the findings of the Appellate Court insofar as they pertain to setting aside the conviction under Section 379 of the IPC. 15. 1 16. Now, the point that arises for consideration is: Whether the sentence passed by the 1^* Appellate Court warrants any interference? POINT: 17. Learned counsel for the petitionef/accused has sought a modification of the sentence, contending that further incarceration would be excessive and unjust, given that the accused had already served some portion of the sentence. 18. It is a well-established principle of sentencing policy that the punishment imposed must be proportionate to the gravity of the proven offence. The sentence should be neither nominal nor excessive. What constitutes a proportionate sentence must be determined a case-by-case basis, having due regard to the specific facts and circumstances of each matter. on 19. While ordering the sentence, the facts and circumstances of each of the case before the Court has to be appreciated on its own merits and the circumstances in one criminal case cannot be taken as a binding precedent in so far as the order on sentence in another case, unless the facts and circumstances of each of the instances corresponds to each other or exactly tallies. But always, the Court must bear in mind the cardinal principle that the sentence ordered must be proportionate to the gravity of the proven guilt, and it should not be excessive or exorbitant. 7 4 20. True that in the instant case, the petitioner/accused has been found guilty of an offence punishable under Section 379 of the IPC. 21. Learned counsel for the petitioner/accused submits that the accused was approximately 30 years old at the time of the offence and has no prior criminal record. Her family depends solely on her for support. She is now around 47 years old. The theft occurred on 11.04.2008. The Judgment of the 1®‘ appellate Court shows that the petitioner had been in custody for a total of 24 days, i.e., from 29.09.2008 to 15.10.2008 and from 17.09.2009 to 23.09.2009. 22. Learned counsel for the petitioner submits that the trial court has not invoked the provisions of the Probation of Offenders Act, 1958 (hereinafter 'the P.O. Act'), and the petitioner has a fixed place of abode and no antecedents have been reported against the petitioner. Section 3 of the P.O. Act reads as follows: “When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction Is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition. Section 4 of the P.O. Act reads as follows: “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 behavior. 8 jit 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. ” " 23. In Chellammal and Another V. State Represented by the Inspector of Police"^, the Hon’ble Supreme Court held that: “26. On consideration of the precedents and based on a comparative study of Section 360, Cr. PC and sub-section (1) of Section 4 of the Probation Act, what is revealed Is that the latter is wider and expansive in its coverage than the former. Inter alia, while Section 360 permits release of an offender, twenty-one years old, on probation when he is sentenced to imprisonment for less than seven years or fine, Section 4 of the Probation Act enables a court to exercise its discretion in any case where the offender is found to have committed an offence such that he is punishable with any sentence other than death or life imprisonment 28. Summing up the legal position, it can be said that while an offender cannot seek an order for grant of probation as a matter of right but having noticed the object that the statutory provisions seek to achieve by grant of probation and the several decisions of this Court on the Point of applicability of Section 4 of the Probation Act, we hold that, unless applicability is excluded, in a case where the circumstances stated in sub-section (1) of Section 4 of the Probation Act are attracted, the Court has no discretion to omit from its consideration release of the offender on probation; on the contrary, a mandatory duty is cast upon the Court to consider whether the case before it warrants releasing the offender upon fulfilment of the stated circumstances. The question of grant of probation could be decided either way. In the event the Court, in its discretion, decides to extend the benefit of probation, it may, upon considering the report of .the probation officer, impose such conditions as deemed just and proper. However, if the answer be in the negative, it would only be just and proper for the Court to record the reasons therefor. ” more 24. Learned Legal Aid counsel for the petitioner relied on a decision reported in Som Dutt and Others V. State of Himachal Pradesh^, wherein the Hon’ble Apex Court held that: “6. Sections 3 and 4 of the Probation of Offenders Act empower the courts to release the offenders on probation of good conduct in the cases and circumstances mentioned therein. Similarly, Sections 360 and 361 Cr.P.C also empower the courts to release the offenders on probation of good conduct in the cases and circumstances mentioned therein. Hence, having regard to sentence imposed by the courts below on the appellants for the offence under Section 379 read with Section 34 IPC, and having regard to the fact that there are no criminal antecedents against the appellants, the Court is inclined to give them the benefit of releasing them on probation of good conduct. In that view of the matter, while maintaining the conviction and sentence imposed on the appellants, it is directed ^ 2025 Supreme(SC) 685 " (2022) 6 see 722 <0 that the appellants shall be released on probation of good conduct, on each of the appellants furnishing a personal bond of Rs 25,000 with surety of the like amount, and on further furnishing an undertaking to keep the peace and good behaviour for a period of three years, to the satisfaction of the trial court concerned. It is further directed that if the appellahts failed to comply with the said directions or commit breach of the undertaking given by them, they shall be called upon to undergo the sentence imposed by the trial court." 25. The Hon’ble Supreme Court in Chandreshwar Sharma V. State of Bihai^, while considering such mandate, has held to the following effect:- “3. the appellant herein i/yas convicted under Sections 379 and 411 IRC and was sentenced to rigorous imprisonment for one year as 3.5 kg of non-ferrous metal i/i/as 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, ahd this contention has been negatived and rightly so. When the matter i/vas 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. Pursuant 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 the 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 guestion of applicability of Section 360 of the Code of Criminal Procedure. 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 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 Code of Criminal Procedure. 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 reason not to apply the provisions of Section 360 of the Code of Criminal Procedure. ” 26. Thus, as per the above Judgment rendered by the Hon'ble Supreme Court, the Magistrate as well as the Court of Appeal and the High Court have to consider the question of applicability of Section 360 Cr.P.C. as Sections 360 and 361 Cr.P.C. on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 Cr.P.C., but 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. 27. As seen from the record, neither of the Courts has given any specific reason as to why the benefit of section 4 of the Probation of Offenders Act ® (2000) 9 see 245 10 has not been given to the petitioner. It is the mandatory duty cast upon the ^ Magistrate, as well as the 1®' Appellate Court, which has not been performed in the case at hand. However, the record shows that nearly seventeen years have elapsed since the offence involving the accused. During this extensive period, there is no material on record indicating that the accused has engaged in any further criminal activity or possesses a history of criminal antecedents. Considering the passage of time since the incident, the absence of any further criminal involvement, this Court is persuaded to carefully weigh the implications of imposing further imprisonment at this stage. Incarceration after such a prolonged period could disrupt the accused's personal life and adversely affect the welfare of his family, who may be dependent on him. The learned counsel for the petitioner submits that the petitioner is a first-time offender and a woman. Considering the age of the accused, economic condition, the passage of time since the accident, and the absence of any prior criminal antecedents. It this Court finds that the sentence imposed against the accused for the offence alleged is on the higher side and can be considered excessive. The trial Court should have noted that Section 3 of the Probation of Offenders Act, 1958, further entitles a convict to release after due admonition if the case falls within the parameters prescribed therein. Given the duration of the remand, the trial court ought to have considered the feasibility of invoking the beneficial provisions of Section 3 of the Probation of Offenders Act, as the accused was convicted for the offence under Section 379 of the IPC. 28. So far as the prayer of learned counsel for the petitioner for releasing the petitioner on probation on good conduct is concerned, this Court feels that the purpose of criminal law justice is not only to bring peace, harmony and discipline in the society. In light of the Settled legal position, this Court views that the trial Court, as well as the 1®' appellate Court, could have provided the benefit of the provision of the Act, 1958, to the petitioner/acc used. 29. 11 Resultantly, the Criminal Revision Case is partly allowed upholdingthe conviction of the petitioner/accused under Section 379 IRC, and substantive sentence of imprisonment passed ^gainst the petitioner/accused by the learned IV Additional Junior Civil Judge, Guntur vide Judgment dated 18.02.2009 in C.C.No.470 of 2008 confirmed by the V Additional Sessions Judge (Fast Track Court), Guntur vide Judgment dated 17.09.2009 in Crl.A.No.94 of 2009, is set aside. Instead, the accused is ordered to be released on probation for a period of one (1) year subject to her executing a bond for Rs,10,000/- (Rupees ten thousand only) within three months from the date of receipt of the order to the satisfaction of learned IV Additional Junior Civil Judge, Guntur and also an undertaking to the effect that she will maintain peace and good behavior during the period of one year and to appear and receive the sentence as and when called upon to do so in case of violation of any of the conditions of the bond. In the event of failure to provide such a bond, the learned IV Additional'Junior Civil Judge, Guntur, shall inform the same to this Court to take further action in this regard. The Registry shall forward a copy of this order and the relevant records to both the Trial Court and the 1®* Appellate Court forthwith. Let a copy of this order be transmitted to the concerned District Probation Officer, with a direction to provide proper guidance to the petitioner/accused in complying with the Court’s order, without any deviation. Interim orders granted earlier, if any, shall stand vacated, and the miscellaneous applications pending, if any, shall stand closed. 30. Sd/- K TATA RAO DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER To 1. The V Additional Sessions Judge, (FTC), Guntur, Guntur District. 2. The IV Additional Civil Judge (Junior Division), Guntur, Guntur District. 3. The Superintendent, Sub Jail, Guntur, Guntur District. House Officer, Kothapet Police Station, Guntur, Guntur 4. The Station District. 5 The District Probation Officer (DPO), Collector Office Road, Collectorae Complex, Guntur, Guntur District, (with a direction to provide proper guidance to the petitioner/accused in complying with the Court’s order, without any deviation.) 6. Two CCs to the Public Prosecutor, High Court of Andhra Pradesh Amaravathi[OUT] CC to Sri Shaik Mohammed Ismail (Legal Aid), Advocate [OPUC] 7. One 8. The Section Officer, Criminal Section, High Court of Andhra Pradesh at Amaravathi. (to dispatch the trial court records) 9. Two CD Copies TK vna HIGH COURT DATED;10/09/2025 ORDER 5 2 3 SEP 2025 1 CRLRC No.1590 of 2009 $JJ ^ Current Seciion ^ PARTLY ALLOWING THE CRIMINAL REVISION CASE