STATE OF GUJARAT Vs. PURANI JAGATPAWANDAS GURU BHAKTI JIWANDAS

JUDGEMENT

(1.) This Revision Application raises certain interesting ques- tions regarding the interpretation of sub-secs. (2) and (4) of sec. 11 of the Probation of Offenders Act 1958 hereinafter called the Act.

(2.) The relevant facts briefly stated run as under : According to the prosecution there is a Swaminarayan Temple situate in village Vadtal which is administered by a registered public trust under a Scheme formulated by this Court. Under the Scheme the Acharya Maharaj is appointed the Custodian-Trustee and the complainant Purani Shantipriyadasjee the Chief Executive Authority (Chief Kothari) of the temple. Every year Nam-Dharmada money is collected from the followers of the Swaminarayan sect for which Letters of Authority (Agnya Patra-Mohor Chhap) are issued to different Tyagis. Accordingly the respondent was issued one such Aguya Patra Exhibit 22 dated 23/ 24/11/1977 for the period from Kartak Sudi 14th of Samvat Year 2034 to Chaitra Sudi 15th of Samvat Year 2034 whereby he was authorized to collect Nam-Dharmada from the followers of the Swaminarayan sect residing in Bombay Pune Nasik Kalyan and Madras. The respondent was under the terms of the said Agnya-Patra given receipt-books for issuing receipts to those devotees who contributed to Nam-Dharmada and was bound to account for the same. The respondent along with two others went to the places wherefrom he was authorized to collect Nam-Dharmada and he collected a substantial amount of Rs. 2 14 359 ps. from the devotees out of which he was entitled to deduct the expenses of Rs. 782-85 ps. and deposit the balance with the Chief Kothari of the trust. However instead of depositing the full amount the respondent and his two companions deposited a sum of Rs. 1 25 0 only and failed to account for the balance of Rs. 88 576 ps. Demands were made by the Chief Kothari as well as the Acharya Maharaj for the said balance but the respondent and his companions turned a deaf ear to the demands and hence the Chief Kothari was constrained to lodge a complaint (Exhibit 15) for misappropriation of the trust funds at the Chaklasi Police Station. An offence under sec. 406 of the Indian Penal Code was registered and the respondent and his two companions were charge-sheeted and put up for trial before the learned Chief Judicial Magistrate Nadiad who by his order dated 19/12/1979 convicted the respondent and his two companions under sec. 406 of the Indian Penal Code. The two companions of the present respondent were directed to suffer rigorous imprisonment for one year and to pay a fine of Rs 1 0 in default to suffer rigorous imprisonment for six months. So far as the present respondent is concerned the learned Magistrate while convicting him under sec. 406 of the Indian Penal ode directed that he be released on probation of good conduct on his executing a bond in the sum of Rs. 2 0 with one surety for like amount for a period of three years and in the meantime to keep the peace and be of good behaviour under sec. 4(1) of the Act. By the said order the present respondent was placed under the supervision of the Probation Officer Nadiad during the aforesaid period of three years. Against the said order of conviction the present respondent and his two companions preferred an appeal being Criminal Appeal No. 148 of 1979 which was heard and disposed of by the learned Additional Sessions Judge Nadiad who by his order dated 24/01/1980 confirmed the conviction of the present respondent but set aside the conviction and sentence imposed upon his two companions. Against the said order of confirmation of convection the present respondent filed Revision Application No. 175 of 1980 but the said Revision Application was rejected in limine on 28/04/1980. On 2 1/04/1980 the State preferred the present Revision Application under sec. 11(4) of the Act challenging the legality and propriety of the order passed under sec. 4 of the Act.

(3.) The respondent though served has not put in an appearance in this Court. As certain important questions regarding the construction of sub-sections (2) and (4) of sec. 11 of the Act were involved in this Revision Application we requested Mr. D. K. Shah Senior Counsel of this Court to assist us Amicus Curiae and we are grateful to him for the valuable assistance rendered to us on the diverse questions arising in the matter.