1 901-CRI.REVN-APPLN NO.108-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 108 OF 2018
Ramdas s/o Haridas Bane
Age : 29 years, Occu. Business,
R/o Dhalegaon, Tq. Ahmedpur,
Dist. Latur. …Applicant
Versus
The State of Maharashtra
Through Police Station Kingaon,
Tq. Ahmedpur, Dist. Latur. …Respondent
SectionMr. Kalyan V. Patil, Advocate for Applicant
Mr. A.A. Jagatkar, APP for Respondent/State
CORAM : A. M. DHAVALE, J
DATE : 18th JUNE, 2019
ORAL ORDER:
1. Being aggrieved by the concurrent findings and Judgments
of JMFC, Ahmedpur and First Appellate Court holding the applicant
guilty under Sectionsection 354 IPC and sentencing him to simple
imprisonment for two years and to pay fine of Rs.2,000/-, in default,
simple imprisonment for 15 days, this revision is filed.
2. As per FIR, on 12th March, 2019, the girl aged 16 years
was studying in 10th Std. at Dhalegaon lodged a report at Kingaon
Police Station to the effect that while she and her sister were going
to school, the accused came to her told her that he had been there
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2 901-CRI.REVN-APPLN NO.108-2018
for her and held her hand. Then, she told him that she wanted to go
to attend examination and he should leave her hand. The people
gathered there and then he left her hand and threatened her to kill in
case, she discloses the incident to anybody. She also stated that the
accused was always following her and had taken photograph on his
mobile. He also pulled her Odhni and even gave slaps in the past.
3. On the basis of the FIR, crime was registered at Crime
No.71/2009 under Sectionsection 354, Section323, Section504, Section506 IPC. After completion
of investigation, charge sheet was filed. The learned trial Judge
framed charge and after recording evidence held the accused guilty
under Sectionsection 354 IPC and sentenced as aforesaid. The Appeal
preferred before the Additional Sessions Judge, Ahmedpur was
dismissed. Hence, this revision.
4. After hearing the learned Advocate for the applicat and the
learned APP, I find that there are concurrent findings of both the
Courts below about the happening of the incident. No perversity has
been pointed out to interfere with the concurrent findings. Therefore,
this revision is restricted to the quantum of sentence.
5. Learned Advocate Mr.Kalyan Patil for the applicant
submitted that at the time of evidence, accused was aged 20 years
and the learned trial Judge as well as the First Appellate Court
completely ignored the mandatory provisions of Sectionsection 6 of
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3 901-CRI.REVN-APPLN NO.108-2018
Probation of Offenders Act. He relied on MCD Vs. The State of
Delhi AIR 2005 SC 2658 to submit that as per Sectionsection 6 calling the
report of Probation Officer and considering the same before passing
the order is mandatory. The accused was then below 21 years of
age and the breach of this provision makes judgment of the trial
Court and the First Appellate Court unsustainable.
6. Per contra, learned APP argued that the offence is quite
serious as the accused was stalling the informant and had taken her
photograph as well. He submitted that in the facts and
circumstances, the benefit of SectionProbation of Offenders Act cannot be
given to the accused.
7. The only point for my consideration is whether the
impugned judgment is unsustainable on account of not complying
the provisions of Section 6 of the Probation of Offenders Act ?
8. Admittedly, the accused was aged below 21 years. At the
relevant time., the provisions of POCSO Act were not introduced
and the offence would be under Sectionsection 354 IPC. The act is of only
holding hand of the informant. The girl was aged 16 years and the
boy was aged 20 years and it seems that the accused was in love
with her. If he holds the hand, it cannot be said that he is a hardened
criminal.
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4 901-CRI.REVN-APPLN NO.108-2018
9. In Musa Khan Vs. State of Maharashtra, 1977 (1) SCC
733, it is held that the provisions of Sectionsection 6 of the Probation of
Offenders Act is mandatory and in case of the accused below 21
years the grant of probation is a rule and awarding sentence is
exception. It should be for the reasons to be disclosed.
10. This provision has been ignored by the trial Court. The
First Appellate Court could have rectified the mistake under Sectionsection
11, but it has also not considered the same.
11. Mr. Kalyan Patil also relied on Dilip Kumare Vs. State of
Maharashtra 1996 Cr.LJ Page 721 (Bombay). In this case, the
accused was aged 17 years and there was no previous conviction or
habitual offender. Hence, the benefit of SectionProbation of Offenders Act
was extended to him.
12. Since the report of Probation officer is not before this
Court, it is necessary to remand the matter and direct the First
Appellate Court to follow the provisions of Sectionsection 6 read with Sectionsection
11 of Probation of Offenders Act and then considering the report to
pass appropriate order, hence the order :-
(i) The Revision is partly allowed.
(ii) The order of First Appellate Court is set aside.
(iii) The matter is remitted to the First Appellate Court with a
direction that he should call the report of Probation Officer and shall
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consider the same, and thereafter, pass the appropriate order.
(iv) The applicant is directed to remain present before the First
Appellate Court on 1st July, 2019.
(v) The Record and Proceedings be sent to the Trial Court
immediately.
[ A. M. DHAVALE ]
JUDGE
mta
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